Brian Wei Fou Chung

The plaintiffs sought an injunction to prevent golf balls from the defendants' golf course from entering their property, causing damage and posing a safety risk.

The court dismissed the motion, primarily because the plaintiffs failed to provide a mandatory undertaking concerning damages as required by Rule 40.03 of the Rules of Civil Procedure.

Additionally, the court found that the plaintiffs did not demonstrate irreparable harm and that the balance of convenience favored the defendants, who had taken steps to mitigate the issue and whose business would be significantly impacted by the injunction.

The moving party brought a motion for leave to appeal the order of Justice Edwards dated June 21, 2021.

The Divisional Court dismissed the motion and ordered costs in the amount of $5,000 to be paid to the responding parties within thirty days, to be divided among them as they deem reasonable.

This appeal concerned the interpretation of an exculpatory clause (clause 28) in a preconstruction condominium purchase and sale agreement.

The appellants sought to recover more than their deposit plus interest upon termination of the agreement.

The court affirmed the motion judge's finding that clause 28, which limited the respondent's liability to the deposit plus interest, was clear and not altered by the incorporated Tarion provisions, as it represented an agreed allocation of risk consistent with the Tarion framework.

The appeal was dismissed.

The Court of Appeal for Ontario allowed an appeal by an insurer, Co-operators General Insurance Company, finding it had no duty to defend its insureds, Family and Children’s Services of Lanark, Leeds and Grenville (FCS) and Laridae Communications Inc., against a class action and a third-party claim.

The claims arose from a data breach where a confidential report was hacked from FCS's website and posted online.

The court held that the data exclusion clauses in both the Commercial General Liability (CGL) and Professional Liability policies were unambiguous and clearly excluded coverage for claims arising from the electronic distribution or display of data.

The court rejected arguments that the exclusion clauses nullified the policies or that there were non-electronic claims, emphasizing that the substance of the claims solely related to online data dissemination.

The tenant and landlord brought cross-applications regarding a commercial lease dispute arising during the COVID-19 pandemic.

The parties had agreed to a temporary rent reduction during the lockdown, but disputed its duration and whether the landlord was obligated to apply for the Canada Emergency Commercial Rent Assistance (CECRA) program.

The court found the rent relief agreement validly terminated in August 2020 and that the landlord made no binding promise to apply for CECRA.

However, applying the doctrine of spent breach, the court held the tenant could still exercise its lease renewal option provided arrears were paid.

Claims regarding maintenance breaches were directed to trial.

The plaintiffs, purchasers of condominium units, sued the defendant developer for breach of contract after the project was terminated and deposits returned.

The plaintiffs alleged the developer failed to take commercially reasonable steps to satisfy financing conditions and obtain municipal approvals.

The defendant brought a cross-motion for summary judgment, relying on an exculpatory clause (Clause 28) in the agreements that limited liability to the return of deposits.

The court granted the plaintiffs leave to amend their statement of claim but ultimately granted the defendant's summary judgment motion, dismissing the plaintiffs' action.

The court found Clause 28 enforceable, applying the three-step Tercon Contractors analysis, concluding it applied to the circumstances and was not contrary to public policy, even if a fundamental breach occurred.

The applicants, Laridae Communications Inc. and Family and Children's Services of Lanark, Leeds and Grenville (FCS), brought applications seeking declarations that Co-operators General Insurance Company owed them a duty to defend in a third-party claim and a class proceeding, respectively, arising from a data breach.

Co-operators denied coverage based on "data exclusion" clauses in the insurance policies.

Co-operators also brought an application denying a duty to defend Laridae.

The court found that Co-operators failed to discharge its onus to prove the claims clearly fell within the exclusion clauses and that there was no possibility of coverage.

The court granted the applications of Laridae and FCS, declaring a duty to defend, and dismissed Co-operators' application.

The Town of Lincoln sought a declaration that AIG Insurance Company of Canada had a duty to defend it under a public entity general insurance policy.

The Town was a defendant in a negligence action alleging sewage overflow due to a ruptured pipe, disrepair of a storm sewer, and improper land grading.

AIG denied coverage based on a pollution exclusion clause.

The court found that the claim against the Town had two branches: one related to the pumping station and sewage flood (potentially subject to exclusion), and another related to the storm sewers and land grading (not subject to the exclusion).

As the second branch was not derivative and concerned a different wrongdoing, the pollution exclusion did not apply to it.

Therefore, the insurer had a duty to defend.

The appellant agreed to sell her home at 45 Moore Avenue, Toronto to the respondents.

Between execution of the Agreement of Purchase and Sale and closing, neighbouring property owners asserted ownership of a two-foot-wide strip of the driveway.

The respondents refused to close, claiming the appellant could not convey clear title to the entire driveway.

The appellant sued for damages; the respondents counterclaimed for return of their deposit.

The motion judge found in favour of the respondents, determining that the APS represented the appellant owned all of what visually appeared to be the functioning private driveway, and that the title defect was significant enough to justify refusing to close.

The appellant appealed, arguing the APS only required sale of a seven-foot-wide driveway (per the 1987 survey) and that any defect was not significant.

The Court of Appeal dismissed the appeal.

The plaintiffs (defendants to the counterclaim) brought a motion under Rule 56.01(1)(d) for an order requiring the corporate defendant (plaintiff by counterclaim) to post security for costs in the amount of $80,000.

The court found that while the corporate defendant was impecunious, it would be unjust to order security for costs because the counterclaim was closely related to the main action, the impecuniosity may have been caused by the moving parties' conduct, and the co-defendants undertook to pay any costs awarded against the corporate defendant.

The motion was dismissed.

The respondent brought a motion to quash the appellants' appeal of an arbitral award regarding post-closing adjustments under a Share Purchase Agreement.

The respondent argued that the Joint Submission to Arbitrate governed the proceedings and did not provide a right of appeal, meaning leave was required under the Arbitration Act, 1991.

The appellants argued the original Share Purchase Agreement allowed appeals for 'manifest error'.

The court found that the Joint Submission to Arbitrate replaced the original agreement and governed the arbitration.

As it did not provide a right of appeal, and no leave was sought, the motion was granted and the appeal was quashed.

The appellants successfully appealed orders from the Superior Court of Justice that had reinstated a default judgment and permitted the sale of certain property.

The appeal was allowed because the respondent failed to make full and fair disclosure of material facts concerning the appellants' alleged default and participation in the action when attending before the court without notice to the appellants.

The appellants were self-represented throughout most of the proceedings and only retained counsel a few months before the appeal was argued.

The court awarded costs to the appellants on a partial indemnity basis, finding their claim for substantial or full indemnity costs to have no basis and their partial indemnity claim to be excessive and disproportionate.

The appellants appealed orders of the Superior Court of Justice dismissing their motion to set aside a reinstated default judgment and authorizing the sale of their property to satisfy the judgment.

The original action was commenced in 2001 and resulted in a default judgment of approximately $86,000.

The judgment was subsequently set aside, then reinstated by Brown J. in 2008 on an ex parte basis.

The appellants moved to set aside the reinstatement, but the motion judge dismissed their motion.

The Court of Appeal allowed the appeal, finding that the respondent failed to make full and fair disclosure of material facts when appearing before Brown J. without notice to the appellants, which was a sufficient basis to set aside the judgment.

The applicant, a town councillor, brought an application for judicial review regarding a sexual harassment investigation.

The Integrity Commissioner subsequently concluded the complaint could not be determined, rendering the application moot.

The applicant amended his application to seek a declaration of mootness and costs.

The Divisional Court dismissed the application, finding no unusual circumstances to award costs to the applicant for a moot proceeding, and awarded $15,000 in costs to the respondent Town.

The defendants brought a motion under Rules 21 and 25.11 of the Rules of Civil Procedure to strike out the plaintiffs' Amended Statement of Claim, arguing it failed to disclose a reasonable cause of action and lacked sufficient detail.

The plaintiffs' claim alleged breach of contract, oppression, breach of good faith, misrepresentation, and unjust enrichment arising from a joint venture departure agreement and an alleged sham termination of a management contract.

The court dismissed the motion, finding that the claims were pleaded with sufficient particularity and it was not plain and obvious that they would fail.

The applicant sought appointment of an arbitrator to determine post‑closing purchase price adjustments under a share purchase agreement after the respondents refused to engage the designated accounting firm arbitrator and raised allegations of bias based on the accounting firms having previously retained the applicant’s law firm in unrelated matters.

The court reviewed the legal test for reasonable apprehension of bias applicable to arbitrators and held that the mere fact that an accounting firm had retained counsel for one party in unrelated insolvency matters does not give rise to a reasonable apprehension of bias.

The court found the respondents’ allegations meritless and concluded their conduct had derailed the agreed arbitration process.

Although a former judge was ultimately appointed as arbitrator on consent, the court determined the applicant had lost its contractual right to the designated arbitrator due to the respondents’ unjustified conduct.

Significant costs were ordered against the respondents for acting in bad faith and breaching earlier court orders.

The appellants appealed an order from the Director of the Ministry of the Environment and Climate Change requiring an environmental investigation program at a former dry cleaning facility.

At a preliminary hearing, the Town of Bradford West Gwillimbury requested party status, arguing it owned adjacent property potentially affected by contamination and could provide municipal expertise.

The Tribunal granted the Town party status on consent and adjourned the preliminary hearing to allow the parties to progress on the work items in the order.

In a Commercial List application arising from a share purchase transaction, the applicant sought to compel arbitration of post-closing inventory, working capital, and holdback adjustment disputes, along with declarations concerning ownership of inventory and equipment.

The respondents argued that arbitration was premature because the court first had to determine what constituted inventory and whether the arbitrator had jurisdiction.

The court rejected that position, applied the competence-competence principle, and held that the arbitral process mandated by the SPA had to proceed.

The court also declared that the applicant owned the disputed inventory and equipment, vacated prior interim access orders, and refused to convert the application into an action.

The appellants appealed an order denying them leave to amend their statement of claim.

The proposed amendments sought a declaration that s. 30 of the Pension Act violates s. 7 of the Charter, aiming to access the respondent's federal pension to enforce any future judgment arising from an assault.

The Court of Appeal upheld the motion judge's decision, finding the declaratory relief should have been sought against the federal government and was premature before a final determination of the current issues.

However, the court allowed amendments to the claim against Her Majesty the Queen in right of Ontario.