Barbara Conway

In a costs decision following a professional liability trial, the court determined that the defendants were the successful parties despite findings that they breached their fiduciary duties.

The plaintiffs had sought over $16 million in damages but were only awarded $2,000 in nominal damages.

The court found the defendants' claimed costs of $1,261,235 to be reasonable, but reduced the award by 25% to reflect the court's finding of breach of fiduciary duty.

The plaintiffs were ordered to pay $925,000 in partial indemnity costs.

This decision addresses the issue of costs following a professional liability claim where the plaintiffs sought over $16 million in damages but were ultimately awarded only $2,000 in nominal damages for breaches of fiduciary duty by the defendants.

The court determined that the defendants were the successful parties, having largely resisted the substantial monetary claim.

Despite findings of serious fiduciary duty breaches against the defendants (a law firm and a former in-house counsel), the court awarded costs to the defendants, but reduced the quantum by over 25% to $925,000 to reflect the seriousness of their misconduct.

Following a five-week trial where the plaintiffs succeeded in claims for breach of fiduciary duty and conspiracy, the court determined the appropriate scale and quantum of costs.

The plaintiffs sought over $6.2 million on a substantial indemnity basis.

The court rejected substantial indemnity costs, finding the defendants' litigation conduct did not warrant such a sanction and the pre-litigation conduct was already addressed through punitive damages and disgorgement.

The court awarded partial indemnity costs of $2,200,000 for the action and $20,000 for the counterclaim, apportioning liability among the defendants based on the claims.

The applicant retirement home sought an order in the nature of mandamus to compel the Sheriff to enforce a Landlord and Tenant Board eviction order against a resident with severe physical disabilities.

The Sheriff had refused to enforce the order due to health and safety concerns and the lack of a safe alternative location for the resident.

The Divisional Court granted the application, finding that the Sheriff has a mandatory statutory duty to enforce eviction orders and that the balance of convenience favoured enforcement, given the resident's failure to cooperate in finding alternative accommodations.

The Sheriff was given a delayed deadline to carry out the eviction.

The applicant sought to enforce a July 10, 2019 order from the Supreme Court of the State of New York appointing a temporary guardian for the respondent's mother and ordering the applicant, as trustee of a spousal trust, to pay funds for her well-being and investigation of her whereabouts.

The court applied the test for recognizing foreign judgments, finding the New York court had jurisdiction and the funding order was final.

The court recognized the order regarding the funding provisions but declined to recognize the provisions granting access to medical and confidential information due to privacy concerns.

The plaintiffs sued their former law firm and former in-house counsel for professional negligence and breach of fiduciary duty arising from a commercial transaction and subsequent settlement.

The court found that the former in-house counsel breached his fiduciary duty by acting for the opposing party at a mediation, and that the law firm breached its standard of care by failing to warn the plaintiffs of this conflict.

The court also found the law firm breached its fiduciary duty by obtaining an ineffective conflict waiver.

However, the court concluded that these breaches did not cause the plaintiffs' claimed business losses, as the plaintiffs would have settled regardless and suffered no loss of chance.

The court awarded nominal damages of $2,000.

The Ontario Superior Court of Justice ruled on the applicable exchange rate and prejudgment interest following a judgment where defendants were found to have breached fiduciary duties and conspired to conceal assets.

The court applied the default exchange rate under s. 121(1) of the Courts of Justice Act, which mandates conversion at the date of payment, rejecting the defendants' argument for an earlier transaction date.

The court found that a change in exchange rate alone does not constitute inequity to depart from the default rule.

Prejudgment interest was awarded on the damages and disgorgement amounts from the date the cause of action arose (August 15, 2012), at a rate of 1.3%, in accordance with s. 128(1) of the CJA, excluding punitive damages.

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, which revoked his certificate of registration for sexually abusing a patient.

The appellant argued that the Committee erred in finding a physician-patient relationship existed and in refusing to quash a summons issued to the reluctant patient.

The Divisional Court dismissed the appeal, finding that the Committee's determination of a physician-patient relationship was reasonable based on medical records, OHIP billings, and medical notes provided to the patient.

The Court also upheld the Committee's decision not to quash the summons, concluding that the College's broad investigatory powers and the public interest in prosecuting sexual abuse allegations outweighed the patient's privacy interests.

The applicants sought judicial review of the Ministry's decision to provide disability funding for the applicant's daughter through a transfer payment agency rather than directly to a family-run microboard.

The Divisional Court dismissed the application, finding that the Ministry's decision was reasonable, did not fetter its discretion, and did not breach procedural fairness.

The court held that the Ministry has broad statutory discretion to determine how to allocate and administer funding, and its reliance on transfer payment agencies for oversight and accountability was a reasonable exercise of that discretion.

The appellant employer appealed the dismissal of its motions for summary judgment in three wrongful dismissal actions.

The employer argued that the parties had reached a binding settlement agreement prior to the commencement of the actions.

The Divisional Court found that the motions judge erred in law by failing to analyze whether the parties had agreed on the essential terms of the settlement.

The Court concluded that the parties had reached an agreement on all essential terms, including the payment of legal fees, and intended to resolve the matters.

The appeal was allowed, summary judgment was granted, and the actions were dismissed.

The plaintiffs, founders of a venture capital fund, brought an action against their co-founders and a third-party purchaser for breach of fiduciary duty, breach of contract, and conspiracy.

The court found that the co-founders secretly established a competing fund and conspired with the purchaser to acquire a portfolio company at a discounted price while concealing a valuable asset (the Tinder app).

The court awarded compensatory damages, disgorgement of profits, and punitive damages against the defendants.

The Fund brought a motion seeking payment of $1 million in deferred proceeds under a share purchase agreement and a declaration that Newbury's removal of the general partner of a limited partnership contravened a CCAA stay order.

The court granted the order for deferred proceeds, interpreting the agreement's clear language and factual matrix to mean payment was contingent only on the absence of Canadian Exit Tax, not on profit or loss from the sale of securities.

The court dismissed the request regarding the stay order, finding it did not extend to the general partner or partnership.

Costs were awarded to the Fund.

Bell Canada brought an application for judicial review to set aside an arbitrator's award finding that Bell violated a collective agreement by outsourcing work, resulting in the loss of 31 jobs.

The arbitrator had determined that the affected employees, who were transferred from a wholly owned subsidiary following a single employer declaration under the Canada Labour Code, were entitled to outsourcing protection under a Memorandum of Agreement.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the arbitrator's interpretation of the agreements and the remedial nature of the single employer declaration to be justified, transparent, and intelligible.

The appellant purchased a pharmacy business from the respondents and later sued for breach of warranty after a fertility clinic located in the same building closed.

The trial judge dismissed the claim, finding that the withheld information about the clinic's closure would not reasonably have deterred the appellant from completing the transaction given its limited financial impact.

On appeal, the Divisional Court upheld the trial judge's decision, finding no palpable and overriding error in his interpretation of the commercial contract or his assessment of the evidence.

The parties sought a consent order regarding funds paid into court to vacate a construction lien claim.

The Divisional Court granted the order, directing that $17,056.00 be paid out to the respondent in full satisfaction of the Master's Report and all subsequent proceedings, with the balance and accrued interest paid to the appellant.

The applicant sought judicial review of the Law Society's refusal to investigate his complaint against a lawyer who had acted for the Canadian Human Rights Commission.

The Law Society closed the file at the intake stage, concluding the complaint raised a legal issue regarding privilege rather than professional misconduct.

The Divisional Court dismissed the application, finding that the Complaints Resolution Commissioner correctly concluded he had no jurisdiction to review the matter because the merits of the complaint had not been considered by the Law Society.

The court also held that the Assistant Manager had jurisdiction to review the intake decision based on the Law Society's statutory mandate.

The appellant appealed a decision of the Motions Judge that refused to confirm a Master's report regarding a construction contract dispute.

The Master had found an oral contract existed for construction costs but rejected the respondent's claim for a 20% management fee.

The Motions Judge set aside the report, finding no contract existed, and awarded the respondent the management fee on a quantum meruit basis.

The Divisional Court allowed the appeal, holding that the Motions Judge erred in law by treating the motion as a de novo hearing and failing to defer to the Master's factual findings.

The Master's report was confirmed.

The appellant appealed an order of the Licence Appeal Tribunal directing the revocation of its liquor licence.

The revocation was based on findings that the appellant permitted a patron to remove alcohol, permitted unlawful gambling, and that the manager obstructed and assaulted an inspector.

The Divisional Court dismissed the appeal, finding no error of law in the Tribunal's assessment of the evidence or its application of the test under s. 6(2)(d) of the Liquor Licence Act.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision finding them liable for sex discrimination, a poisoned work environment, and reprisal.

The Tribunal had awarded the respondent $30,000 in general damages after she was terminated for complaining about sexualized comments and conduct.

The Divisional Court dismissed the application, finding the adjudicator's factual findings, damages award, and treatment of the incidents as a continuous series were reasonable.

The court also rejected the argument that the adjudicator's partial reproduction of the respondent's submissions compromised his independence.

The appellants appealed a Master's decision refusing to set aside a Registrar's administrative dismissal of their solicitors' negligence action for delay.

The action arose from a Ponzi scheme and had been dormant for years while the appellants were involved in other proceedings.

The Divisional Court found no error in the Master's application of the Scaini test, agreeing that the appellants failed to provide a satisfactory explanation for the delay and that the respondents suffered significant prejudice.

The appeal was dismissed.