Bradley Teplitsky

The moving parties brought a motion for leave to appeal a March 31, 2021 decision of Perell J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 inclusive to the responding party.

In a fraud action, the defendant volunteered to have the proceeds of the sale of her home held in trust pending trial, resulting in a consent order.

The defendant subsequently brought a motion to use a portion of the frozen funds to pay for her living and legal expenses.

The plaintiffs opposed, arguing the court lacked jurisdiction to vary the consent order.

The court held that the consent order was equivalent to a Mareva injunction and that it had the jurisdiction to permit the defendant to use the frozen assets for reasonable expenses.

The motion was granted, allowing the defendant to use up to $175,000 from the proceeds.

The appellants brought a motion seeking to appoint the Office of the Public Guardian and Trustee as litigation guardian for one appellant, to require a mental examination, to remove counsel, to extend time to perfect the appeal, and to seal evidence concerning mental health.

The motion judge addressed the sealing and confidentiality issues under the two-part test from Sierra Club v. Canada (Minister of Finance).

The court ordered redaction of solicitor-client communications and certain historical medical information as reasonable alternatives to confidentiality orders.

However, the court declined to grant a confidentiality order for current observations of the appellant's mental state, finding insufficient evidence of necessity under the Sierra Club test.

References to a non-party's health information were also redacted as unnecessary and irrelevant.

The appellant challenged an order arising from misleading comparative advertising directed at the respondent's water heater and rental services business.

The Court of Appeal upheld findings of liability under ss. 7(a) and 22(1) of the Trade-marks Act and rejected the argument that damages had not been proven, holding that unchallenged affidavit evidence and evidence of unusual contract cancellations supported a prima facie case.

The court also upheld liability under s. 52(1) of the Competition Act, finding that the motion judge's conclusion that the brochure was directed at misleading consumers implicitly established the required mental element of knowledge or recklessness.

A separate appeal was dismissed as abandoned, and costs were awarded to the respondent.

Following the dismissal of a will challenge via summary judgment, the successful respondents sought costs on a substantial indemnity scale.

The court found that the applicants' allegations of undue influence were not evidence-based and their vitriolic approach unnecessarily prolonged the litigation.

The court awarded costs of $275,000 to the estate and $125,000 to the respondent personally, payable by the applicants, with one applicant's liability capped at 20%.

The moving parties (respondents in the main action) brought a motion for summary judgment to dismiss the responding parties' claims challenging the validity of the deceased's 2005 will and inter vivos transfers.

The responding parties alleged that the deceased was subjected to undue influence and fraud by her son, the primary beneficiary.

The court reviewed the extensive circumstantial evidence and found no genuine issue requiring a trial, noting that the deceased was an independent and strong-willed individual who made deliberate choices about her estate.

Summary judgment was granted dismissing the claims to set aside the 2005 will and the inter vivos transfers.

The appellant leased a water heater from the respondent.

The respondent proposed an amendment to the rental agreement requiring customers to deal directly with the respondent to terminate the agreement, rather than using an agent.

The appellant sought a declaration that the amendment was invalid under the Consumer Protection Act.

The Court of Appeal held that the amendment did not comply with the Regulation because the right to terminate was not unconditional.

However, the Court upheld the application judge's decision to invoke s. 93(2) of the Act, binding the appellant to the amendment, as the application was brought for a collateral purpose to benefit a competitor and no consumer was prejudiced.

The Court of Appeal for Ontario issued an endorsement regarding costs following an appeal.

The court considered written submissions and ordered the appellant to pay costs to the respondent, Domtar Inc., fixed at $13,000 inclusive of GST and disbursements.

Orlando Corporation appealed the trial judge's disposition of costs following a construction negligence trial where damages were reduced by 90% due to contributory negligence.

The appellant argued the trial judge erred by combining two separate offers to settle under Rule 49.10 and by failing to reduce the respondent's costs despite its expert witness misleading the court.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion to depart from the strict application of Rule 49.10 to avoid an unfair result, and appropriately balanced the witness's conduct against the appellant's minimal success at trial.

The Court of Appeal for Ontario issued an endorsement on costs following an appeal.

The respondent was awarded partial indemnity costs fixed at $50,000, inclusive of disbursements and GST.

The plaintiff appealed a trial judgment apportioning 90% of the fault to it for corrosion damage to the steel roofs of two of its warehouse buildings.

The trial judge found the plaintiff negligent for failing to install a vapour barrier, which allowed condensation to cause the corrosion, and the defendant 10% at fault for failing to warn that its phenolic foam insulation contained corrosive acids that could accelerate the damage.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the plaintiff's failure to consider the permeability of the insulation and foresee the risk of moisture damage constituted contributory negligence.

The defendant's cross-appeal regarding its duty to warn was also dismissed.