Atrisha S. Lewis

Following the dismissal of the plaintiff's class action on summary judgment, the parties made written submissions on costs.

The defendants sought full or substantial indemnity costs, while the Class Proceedings Fund argued for a 30% reduction on the basis that the litigation was brought in the public interest.

The court rejected both arguments, finding that the defendants' discounted fee arrangement and the breach of trust pleading did not justify an elevated costs scale, and that the pension calculation dispute was a private financial matter rather than public interest litigation.

The court exercised its discretion to award the defendants partial indemnity costs fixed at $200,000 for fees plus disbursements.

The court issued a supplementary endorsement to correct two points from its previous reasons for judgment granting certification and summary judgment dismissing the action.

On consent of the parties, the court revised the class definition regarding the defined benefit indexation payment increase from the pension plan.

The court also clarified that only the employer, and not the other defendants, owed a fiduciary duty to the plaintiff in the administration of the plan.

During a medical malpractice jury trial, the defendant physicians sought leave under Rule 53.08 to file a supplementary expert report and to elicit testimony from their experts on matters not explicitly stated in their reports.

The court denied leave for the supplementary report, finding it failed to comply with Rule 53.03 by omitting the reasons for its conclusions, and its admission would cause undue prejudice to the plaintiffs.

The court also ruled on several evidentiary objections, narrowly interpreting the 'latency' principle.

The court held that experts cannot use conclusory statements in their reports to ambush opposing parties with new reasons or theories at trial, though exceptions were made where testimony directly responded to new developments during the trial.

Prior to a medical malpractice jury trial, the court ruled on several procedural and evidentiary motions.

The plaintiffs had entered into a Pierringer Agreement with the defendant hospital and nurses, leaving only the physicians as defendants.

The court ruled that both the plaintiffs and the physicians could cross-examine the settling nurses at trial.

The court also determined the sequencing and phrasing of jury questions, ruling that standard of care must be determined before causation, and permitting 'caused or contributed' language due to the presence of multiple tortfeasors.

Finally, the court allowed the plaintiffs to use photographs of the amputations in their opening address but restricted the experts' use of lengthy PowerPoint presentations.

The plaintiff, a pensioner, brought a proposed class action alleging that the employer miscalculated the 2017 cost of living increase for pension payments, negatively affecting all subsequent years.

The plaintiff sought certification of the class proceeding and summary judgment for breach of contract, breach of trust, and breach of fiduciary duty.

The court certified the action as a class proceeding, finding it met all criteria under the Class Proceedings Act.

However, on the merits, the court granted summary judgment in favour of the defendants, concluding that the employer's interpretation of the pension plan's rounding provisions was correct and no breach of duty occurred.

The plaintiff in a proposed class action moved to introduce Pension Information Committee Reports from 1998 to the present as late-filed evidence, after cross-examinations had been completed.

The defendants objected but suggested that if the reports were admitted, the annual pension statements for the same years should also be admitted.

The court applied the test for late-filed evidence, finding the documents relevant, non-prejudicial as they were the defendants' own records, and reasonably omitted initially.

The court granted the motion, admitting both the reports and the annual statements in the interests of justice.

This ruling addresses the admissibility of expert medical evidence from Dr. Harmeet Gill, an ophthalmologist, in a medical malpractice trial.

The plaintiffs sought to have Dr. Gill testify on the standard of care for ophthalmologists, diagnosis and treatment of orbital cellulitis, the general standard of care for physicians dealing with orbital cellulitis (including emergency room and infectious disease specialists), and causation.

The defendants objected to Dr. Gill testifying outside his specialization and on causation.

The court admitted Dr. Gill's evidence regarding the standard of care for ophthalmologists, general physician knowledge (e.g., sepsis identification), and multidisciplinary team communication and record-keeping, finding it relevant and necessary to the plaintiffs' theory of the case.

However, the court excluded Dr. Gill's opinions on causation, as he admitted lacking expertise on the ultimate outcome of septic patients.

The plaintiff, Solea International BVBA, was the successful party on a motion for summary judgment and sought costs on a substantial indemnity basis.

The defendant, Bassett & Walker International Inc., opposed the substantial indemnity claim, arguing that Solea's offer to settle for the full claim amount was not a true "offer of compromise." The court found that Solea was entitled to rely on its offers and awarded costs on a substantial indemnity basis from the date of its offer.

The court also determined the calculation method for substantial indemnity costs for the second hearing.

The plaintiff brought a motion for summary judgment for the unpaid purchase price of a shipment of shrimp.

The Court of Appeal had previously directed a rehearing applying the Contracts for the International Sale of Goods (CISG).

The defendant argued it was entitled to avoid the contract due to a defective Health Certificate and that the plaintiff's acceptance of the returned shrimp mitigated damages or constituted unjust enrichment.

The court found the defendant did not properly declare the contract avoided under the CISG and that there was no agreement excusing payment of the purchase price upon the return of the goods.

Summary judgment was granted to the plaintiff for the full purchase price plus 8% interest.

This decision addresses a scheduling dispute in a proposed class action concerning the Bell Canada Pension Plan.

The defendants sought to have their motion to stay the class action, arguing that the Office of the Superintendent of Financial Institutions (OSFI) was the preferable forum, heard before the certification motion.

The plaintiff opposed this, requesting both motions be heard concurrently.

The court, applying the Cannon factors and principles against litigation by installments, denied the defendants' request, directing that the stay motion be heard together with the certification motion, emphasizing that the preferability of jurisdiction is an issue best determined within the certification context.

The plaintiffs sought costs for undertakings and refusals motions brought against several defendants in a medical malpractice action.

The court awarded the plaintiffs $6,800 in costs against five defendant physicians who failed to answer undertakings until after the motion was served.

However, the court awarded costs of $3,257.64 to another defendant physician who was successful on the single refusal argued and had answered undertakings promptly.

No costs were awarded against two other defendants who resolved their issues prior to the hearing.

The plaintiff, the former manager of the defendant investment fund, sued for fees and damages following the termination of its management agreement.

The defendant fund counterclaimed, alleging the manager was terminated for cause due to material breaches of the standard of care, particularly regarding its handling of the fund's liquidity crisis and its recommendation to enter into a high-interest loan rather than suspending redemptions.

The court found that the manager materially breached the standard of care, justifying the termination.

However, the fund's counterclaim for damages was dismissed as statute-barred under the Limitations Act, 2002.

The manager was awarded certain unpaid fees accrued prior to termination.

During a medical malpractice trial concerning an ulnar nerve injury sustained during orthopedic surgery, the defendants objected to the plaintiffs' expert orthopedic surgeon testifying on causation and standard of care issues not expressly stated in his written reports.

The court ruled that under Rule 53.03, an expert cannot testify on matters that open up a new field not mentioned in their report, nor can the court be left to infer opinions.

The expert was precluded from offering opinions on causation and the standard of care for the initial consultation, as these were not clearly articulated in his reports.

The plaintiffs sued the lawyer who represented the purchaser in a share sale, alleging he falsely stated that funds had been deposited in a trust account.

The lawyer and his firm moved to strike the claims against them.

The court struck the claim for negligent misrepresentation, finding that a lawyer owes no duty of care to an opposing party who is represented by their own counsel.

However, the court refused to strike the claim for intentional misrepresentation, finding the plaintiffs had pleaded all necessary elements.

The court also declined to strike a cross-claim for contribution by a co-defendant bank.

The appellant appealed a summary judgment holding it liable for the full unpaid purchase price of frozen shrimp ($228,604.50 US) plus prejudgment interest.

The dispute arose from a contract between a Toronto-based company and a Belgian seafood trader for the purchase of shrimp from an Ecuadorian supplier.

The motion judge determined liability under Ontario common law without addressing whether the United Nations Convention on Contracts for the International Sale of Goods applied.

The Court of Appeal found that the proper law of the contract was a threshold issue that should have been addressed, as the Convention applies to international sales of goods between parties in different contracting states.

The court set aside the summary judgment and remitted the matter for a new hearing.

The appellant sought leave to appeal from the dismissal of his appeal to the Superior Court from his conviction in the Ontario Court of Justice for uttering threats to cause death.

The Court of Appeal dismissed the application for leave to appeal, finding that the appellant failed to satisfy the test on both branches: there was no question of law with arguable merit and significance to the administration of justice, and there was no clear error in the decision below.

The court rejected the appellant's arguments regarding solicitor-client privilege, finding that such privilege did not apply to the communications in question and that the summary conviction appeal judge was not required to address the issue in his reasons.

Solea International BVBA (Solea) brought a motion for summary judgment against Bassett & Walker International Inc. (BWI) for payment of a shrimp shipment.

BWI disputed liability, claiming Solea failed to provide proper import documents (a valid health certificate) for Mexican customs.

Solea countered that BWI's own actions prevented importation and that BWI had acknowledged payment responsibility.

The court applied the Hryniak v. Mauldin framework for summary judgment, finding no genuine issue requiring a trial.

The court determined there was no evidence of a deficient health certificate from Solea or that such a deficiency caused BWI's inability to import.

Instead, evidence suggested BWI failed to pay port fees.

The motion for summary judgment was granted in favour of Solea for $228,604.50 (U.S.), plus pre and post-judgment interest.

The appellant appealed his conviction for conveying a threat to cause death to a judge via email.

He argued the trial judge erred in relying on the contents of the email to establish his identity as the sender and in finding the words constituted a threat.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's use of circumstantial evidence and self-identification to prove identity, nor in the objective conclusion that the email's contents constituted a threat to cause death.

In CCAA liquidation proceedings, the secured creditor and investment advisor sought a declaration that it was entitled to a contractual additional fee arising from the sale of one of the debtor’s portfolio investments.

The creditor argued that the debtor breached a settlement agreement by failing to repay outstanding advisor debt before the asset sale closed, which would have triggered the fee.

The court held that the agreement required payment only when reasonably practicable based on the debtor’s commercially reasonable estimate of liquidity and expenditures.

Given the uncertainty of the closing and the debtor’s limited cash resources during CCAA proceedings, the decision to wait until proceeds were actually received was commercially reasonable.

The motion for a declaration and payment of the additional fee was dismissed.

The appellant appealed an order determining the distribution of net proceeds from the sale of a joint venture winemaking business.

The appellant argued that all shareholder loans, whether secured or unsecured, should be repaid pro rata based on a shareholders agreement, which would effectively ignore the respondents' collateral mortgage and give the appellant almost all the proceeds.

The Divisional Court dismissed the appeal, holding that absent a clear provision to the contrary in the shareholders agreement, secured debts are properly payable in priority to unsecured debt.