Brett Hughes

The defendants (other than Johnson Controls) brought a motion to stay the action based on alleged failure by the plaintiff and Johnson Controls to immediately disclose a settlement agreement (the Pro Rata Agreement) that they claimed changed the litigation landscape.

The court dismissed the motion, finding that timely disclosure was made in the context of this particular case and that the agreement did not change the litigation landscape because the action had been effectively stayed and the dispute was being pursued in arbitration.

The court also addressed the application of new Rule 49.14 regarding partial settlement disclosure and fashioned appropriate remedies.

The court granted a motion to strike a third-party claim brought by Roy D’Mello against the plaintiff’s lawyers, Neil Colville-Reeves and Reeves Richarz LLP, in a complex mortgage and property litigation.

The third-party claim sought contribution and indemnity, as well as damages for alleged champerty and maintenance.

The court found that claims against a plaintiff’s lawyer, acting as agent, cannot be sustained where the alleged conduct is attributable to the plaintiff.

The court also held that the facts pleaded did not support a claim for champerty or maintenance.

Leave to amend was denied.

The decision addresses a motion by Gowing Contractors Ltd. and Zurich Insurance Company Ltd. to strike the statement of defence of Walsh Construction Company Canada and Walsh Construction Co., and to stay related actions, on the basis that Walsh failed to immediately disclose a settlement with the City of Toronto in a related action.

The court found that the settlement did not entirely change the litigation landscape of the actions involving Gowing and Zurich, and therefore the immediate disclosure doctrine did not apply.

The motion was dismissed.

This decision addresses an application by several media organizations for virtual access to a high-profile murder trial, invoking the open court principle.

The court reviews the constitutional and statutory foundations of open courts, the discretion of judges to permit or deny virtual access, and the practical realities facing media coverage.

Ultimately, the court finds that while the open court principle does not require virtual access, it may be granted at the court’s discretion in light of modern realities and the decline of local news coverage.

The Court of Appeal for Ontario dismissed Rosemont’s appeal from an order staying its application against John Faraci as an abuse of process.

The case turned on Rosemont’s failure to immediately disclose a settlement agreement with Cityzien Properties Limited to Mr. Faraci, which fundamentally changed the litigation landscape.

The court held that the obligation to disclose crystallized when the settlement was finalized, and that a delay of nearly two weeks was not “immediate” as required by law.

The court reaffirmed the strictness of the immediate disclosure rule and the automatic remedy of a stay for its breach, regardless of whether the settlement was ultimately enforceable.

The defendant, Michelangelo Rizzo, moved to stay a Toronto action as an abuse of process due to a partial settlement agreement between the plaintiffs and co-defendant Tara Daniel that was disclosed to him but not to the court.

The plaintiffs sought a right of way over property owned by Rizzo and Daniel, or damages in lieu.

The court found that the procedural agreement did not sufficiently change the litigation alignment to justify a stay, but the plaintiffs' failure to disclose the agreement to the court warranted a costs sanction.

The motion for a stay was dismissed, but costs were awarded to Rizzo.

The Corporation of the City of Kawartha Lakes moved to stay or dismiss the action against it, alleging abuse of process due to the plaintiffs' delayed disclosure of a cooperation agreement with co-defendants.

The plaintiffs concurrently moved for court approval of this agreement.

The court examined the disclosure obligations for partial settlement agreements that alter the litigation landscape.

It found that while immediate disclosure is generally required, the moving party had sufficient prior knowledge of the agreement's essential terms to avoid "litigation by ambush." Consequently, the motion to stay was dismissed, and the plaintiffs' motion to approve the cooperation agreement was granted.

A separate consent motion to dismiss the action against The Dominion of Canada General Insurance Company and John Doe was also granted.

The appellants, six defendants in a construction dispute, appealed a motion judge's decision dismissing their request to permanently stay the action.

They argued that a partial settlement between the plaintiff (respondent) and three other defendants (including an insurer) was not immediately disclosed, constituting an abuse of process.

The settlement involved the plaintiff assigning claims to the insurer and contemplating a Pierringer Agreement.

The motion judge found the settlement did not significantly alter the litigation dynamics to require immediate disclosure and that disclosure, if required, was immediate.

The Court of Appeal upheld the motion judge's finding that the settlement did not significantly alter the litigation dynamics, emphasizing that the claims against the settling parties were fundamentally distinct from those against the appellants, and the use of the term "Pierringer Agreement" was not determinative without a substantive change in adversarial positions to cooperative ones.

The appeal was dismissed.

Rosemont brought an application against Cityzien and Mr. Faraci regarding an abortive real estate transaction and property management dispute.

Rosemont and Cityzien reached a partial settlement, which was negotiated by a Cityzien director without the required unanimous shareholder approval.

Rosemont moved to enforce the settlement, while Mr. Faraci moved to permanently stay the application against him, arguing that the failure to promptly disclose the settlement—which changed the litigation landscape by aligning Rosemont and Cityzien against him—constituted an abuse of process.

The court refused to enforce the settlement, finding it unauthorized and improvident, and granted the stay against Mr. Faraci, holding that the delayed disclosure of the settlement was an abuse of process.

This motion concerned the interpretation of the Wage Earner Protection Program Act (WEPPA) regarding Service Canada's subrogation rights to recover payments made to employees from an insolvent employer's distribution.

Metroland Media Group Ltd. made a proposal to its creditors, entitling unsecured creditors to a 17% distribution.

Service Canada had approved payments to former non-unionized employees under WEPPA for unpaid severance pay.

The issue was whether Service Canada was entitled to recover these payments on a dollar-for-dollar basis from the employees' distribution or only a pro-rata share (17 cents on the dollar) as an unsecured creditor.

The court held that Service Canada is entitled to a dollar-for-dollar recovery, up to the amount of the WEPP payment, from the employee's distribution before the employee receives any balance.

Echelon General Insurance Company brought two motions: one to strike paragraphs from the plaintiffs' solicitor's affidavit for lack of personal knowledge/source, and another to stay the action due to the plaintiffs' alleged failure to disclose a Pierringer agreement from a separate construction action.

The court dismissed the motion to strike, finding the affidavit information uncontested background facts.

The court also dismissed the motion to stay, ruling that the "Aecon principles" of disclosure of settlement agreements do not extend to settlements in entirely separate proceedings where the non-settling party (Echelon) was not a party and had opportunities to protect its interests (e.g., by joining third parties or pursuing subrogated claims) but failed to do so.

Costs were awarded to the plaintiffs.

In a complex construction litigation, the third and fourth parties brought a motion for satisfaction of undertakings and refusals, seeking documents prior to the execution of a settlement agreement on December 7, 2021.

They argued the settling parties reached an 'agreement in principle' earlier and failed to immediately disclose it, fundamentally altering the litigation landscape.

The court dismissed the motion, finding the requested documents were protected by settlement privilege, litigation privilege, and solicitor-client privilege, and that the obligation to disclose applies only to concluded agreements, not ongoing negotiations.

The moving defendants sought an order staying the plaintiff's action as an abuse of process due to the plaintiff's alleged failure to immediately disclose a settlement agreement with other defendants (Catlin Canada Inc., The Regional Municipality of York, and The Regional Municipality of Durham).

The plaintiff brought a cross-motion for leave to amend its Statement of Claim to reflect the settlement and limit claims against non-settling defendants to their several share of liability.

The court dismissed the motion to stay, finding that the partial settlement did not entirely change the litigation landscape in a way that significantly altered the dynamics, and that the disclosure made was sufficient given the circumstances.

The plaintiff's cross-motion to amend was granted.

The plaintiffs sought leave to amend their Statement of Claim, approximately 15 years after its issuance, to include particulars from expert reports regarding the defendant Ontario's alleged negligence in placing predatory inmates with the plaintiff Paul Bruno and failing to remove them.

Ontario opposed, arguing the amendments constituted a new, statute-barred cause of action.

The court, applying Rule 26.01 of the Rules of Civil Procedure and a "factually oriented" approach to "cause of action," found that the proposed amendments clarified existing claims and did not introduce new material facts or a new cause of action.

The court noted that the issues had been engaged during discovery and expert exchanges, thus causing no non-compensable prejudice to Ontario.

The motion to amend was granted.

The defendants, Municipality of North Middlesex and Vic Stellingwerff, brought a motion to stay the action as an abuse of process, alleging the plaintiffs failed to disclose a Pierringer agreement.

The plaintiffs brought a cross-motion to amend their Statement of Claim to explicitly limit their claim against the non-settling defendants to several liability.

The court dismissed the motion to stay, finding that the existence of the Pierringer agreement was disclosed promptly and did not significantly alter the litigation landscape.

The court granted the cross-motion to amend the Statement of Claim.

The moving defendants sought to dismiss or stay the action because the plaintiff failed to immediately disclose a settlement agreement reached with a co-defendant.

The court found that the settlement did not fundamentally change the litigation landscape, as it was a simple release without costs and did not involve the settling defendant switching sides or cooperating with the plaintiff.

Furthermore, the moving defendants had not asserted cross-claims against the settling defendant before the limitation period expired.

The motion was dismissed.

The appellants (plaintiffs in the underlying action) appealed a motion judge's decision to permanently stay their proceedings against the respondent (David Smith) due to their failure to immediately disclose partial settlement agreements with other co-defendants.

The Court of Appeal for Ontario affirmed that failure to immediately disclose settlement agreements that fundamentally alter the litigation landscape, by changing adversarial relationships into cooperative ones, constitutes an abuse of process.

The court reiterated that the sole remedy for such non-disclosure is an automatic stay of proceedings, regardless of whether prejudice is proven or if pleadings have been exchanged.

The appeal was dismissed, upholding the permanent stay.

The appellants sought a permanent stay of the plaintiffs' action, arguing that the plaintiffs' failure to immediately disclose a settlement agreement with a former defendant, Sean Antonello, fundamentally altered the litigation landscape.

The Court of Appeal for Ontario dismissed the appeal, affirming the motion judge's finding that the settlement did not significantly change the adversarial relationship between the parties.

The court held that the motion judge's determination was entitled to deference and that the drafting of affidavits by plaintiffs' counsel and a non-disparagement clause did not, by themselves, demonstrate an improper cooperative relationship.

This appeal addressed the scope of the "immediate disclosure" rule for litigation-altering agreements, specifically a Pierringer agreement, as established in *Handley Estate*.

The appellant (non-settling defendants) sought to stay the action, arguing the respondent (plaintiff) failed to immediately disclose the agreement's terms.

The Court of Appeal upheld the motion judge's decision, finding that the respondent's disclosure of the agreement's existence and essential terms, coupled with an immediate intent to seek court approval, satisfied the disclosure requirement.

The court clarified that not every term needs immediate disclosure, only those affecting the litigation landscape, and that the rationale for an abuse of process finding was not engaged where the court was informed and the disclosure was incremental within the context of seeking approval.

The defendant David Smith was successful on a motion for a permanent stay of the action against him due to the plaintiffs' failure to disclose settlement agreements.

The parties could not agree on costs.

The defendant sought full indemnity costs, arguing the plaintiffs' conduct was an abuse of process.

The court found the plaintiffs' conduct was misguided but not in bad faith, and awarded partial indemnity costs of $27,000 for the motion and $5,238.20 for the action.