Bryan Daniel Fromstein

The plaintiff, Chantale Abbott-Keith, appealed a Certificate of Assessment of Costs issued by an Assessment Officer, which significantly reduced her claimed party-and-party costs from two settled motor vehicle accident actions and awarded costs of the assessment against her.

The appeal raised grounds including the Assessment Officer's failure to conduct a line-by-line analysis, breach of natural justice and procedural fairness by not properly considering the plaintiff's objections under Rule 58.10, and errors in applying proportionality and reducing disbursements.

The court found that the Assessment Officer erred in interpreting Rule 58.10(1) regarding the timing of objections and fundamentally misconstrued her role in the reconsideration process, thereby denying the plaintiff a fair hearing.

The appeal was granted, the Certificate of Assessment of Costs was quashed, and the matter was remitted back to the same Assessment Officer for a proper hearing of objections.

The plaintiff brought a motion seeking production of the unredacted financial statements of the corporate defendant for the years 2015 to 2017.

The plaintiff alleged the individual defendant breached a non-compete clause and sought disgorgement of benefits received by the corporate defendant.

A previous order allowed the corporate defendant to redact non-relevant information from the financial statements.

After reviewing the unredacted statements pursuant to Rule 30.06(d), the Master concluded that the redacted information was not relevant to the disgorgement claim, as the statements only provided a general high-level overview without the specific details sought by the plaintiff.

The motion for production of the unredacted statements was dismissed.

The appellant appealed orders dismissing her action and denying her motion to set aside the dismissal.

The lower court judge dismissed the action for failure to file notice of appointment of counsel or intention to act in person within 30 days of an order removing her former lawyer.

The Court of Appeal found the dismissal order deficient because it failed to include the required text of the applicable rules, the appellant had not been properly served with the motion, and no reasons were given for the draconian remedy.

The appeal court set aside both lower court orders and imposed a 14-day deadline for the appellant to file notice of appointment of counsel.

The moving party sought an extension of time to appeal a dismissal order from the trial court.

The dismissal was granted after the moving party failed to appoint new counsel or file a notice of intention to act in person following her previous counsel's removal from the record.

The moving party had instead attempted to set aside the dismissal order on the basis it was made without notice, which motion was dismissed.

The Court of Appeal considered the applicable principles for extending time to appeal and granted the extension on terms, finding the proposed appeal raised arguable issues and that the justice of the case favoured granting the extension despite the moving party's lack of diligence.

The appellant appealed a summary judgment order dismissing a motor vehicle negligence claim.

The motion judge found that the appellant made a left-hand turn facing a yellow light in front of an oncoming truck driven by the respondent, who did not run a red light as alleged.

The motion judge concluded there was no genuine issue requiring a trial regarding the respondent's responsibility for the accident.

The appellant argued the motion judge reversed the evidentiary burden and erred in granting summary judgment.

The Court of Appeal upheld the summary judgment, finding the motion judge correctly applied the burden of proof and the appellant failed to meet the onus that shifted to her to demonstrate contributory negligence.

The defendants, Ammar Khan and Brink's Canada Ltd., brought a motion for summary judgment in a motor vehicle negligence claim arising from an accident.

The plaintiff, Victola Mayers, alleged Khan was liable.

The court applied the principles from Hryniak v. Mauldin and found no genuine issue requiring a trial regarding Khan's liability.

The court rejected both the plaintiff's "advance green light" theory, which was contradicted by an independent witness, and the "contributory negligence" theory, finding no evidence that Khan had a reasonable opportunity to avoid the accident.

The motion was granted, and the action was dismissed with costs.

The defendant sought leave to appeal a decision allowing an examination in aid of execution of a corporate representative following default on settlement payments.

The court considered the strict test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

It held there was no reason to doubt the correctness of the lower court’s decision that the Master had erred by treating examinations of a judgment debtor as discretionary and by applying principles relevant to examinations of non-parties.

The court also found no conflicting authority warranting leave and concluded that further delay would not serve the interests of justice.

Leave to appeal was refused and costs were awarded to the responding parties.

The judgment creditors appealed a master's order dismissing their motion to compel a corporate officer to attend an examination in aid of execution.

The master held that because the creditors had commenced a related action against the officer and others alleging fraudulent asset transfers, the right to conduct an examination in aid of execution had merged into the new action.

The court held that this principle applied only to examinations of third parties and not to examinations of a corporate judgment debtor through its officers under Rule 60.18(2) and (3) of the Rules of Civil Procedure.

The master therefore erred in law by concluding the creditors lost their entitlement to examine the corporate representative.

The appeal was allowed and an order was made requiring the officer to attend for examination in aid of execution.

Judgment creditors sought leave under Rule 60.18(3) of the Rules of Civil Procedure to examine a director of the judgment debtor in aid of execution following default on a settlement judgment.

Prior to the examination, the creditors commenced a separate action alleging fraudulent conveyances, bulk sales violations, and oppressive conduct relating to transfers of the debtor’s assets.

The court held that once the new action covering the same subject matter had been commenced, the purpose of an examination in aid of execution was exhausted because the creditor’s rights were merged into the action.

Allowing the examination would create an unfair multiplicity of proceedings and effectively permit duplicate discovery.

The motion was dismissed and costs were awarded to the defendant.

The landlord appealed a decision of the Landlord and Tenant Board, arguing that the Board applied the wrong burden of proof and breached its duty of procedural fairness.

The Divisional Court dismissed the appeal, finding that the Board correctly applied the balance of probabilities standard and properly assessed credibility.

The Court also held that the presiding Member of the Board actively guided the self-represented parties and ensured procedural fairness throughout the hearing.

The appellants, Piro and Montaldi, appealed a summary judgment finding them liable for knowingly assisting an Enbridge employee, Marinaccio, in breaching his fiduciary duty through a fraudulent invoicing scheme.

Over six years, Enbridge paid over $6.5 million for fake invoices submitted by entities controlled by the appellants, who then shared the proceeds with Marinaccio.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that Marinaccio owed a fiduciary duty, the appellants knowingly assisted in his dishonest conduct, and they were liable for bribery and unjust enrichment.

The court also upheld the calculation of damages and the award of compound interest.

The appellant moved to amend its statement of claim after the expiry of the limitation period to add its parent corporation as a plaintiff, arguing misnomer.

The Master and Divisional Court dismissed the motion, finding it was an attempt to add a new party rather than correct a misnomer.

The Court of Appeal upheld the decision, confirming it was not a misnomer and reaffirming that the special circumstances doctrine did not survive the enactment of the Limitations Act, 2002.

The appellant appealed a Master's order dismissing its motion to add its parent company as a plaintiff after the expiry of the limitation period.

The appellant argued the omission was a misnomer, while the respondent argued it was an attempt to add a new party.

The Divisional Court upheld the Master's decision, finding that the appellant was seeking to add a new party rather than correct a misnomer, which is prohibited by section 21 of the Limitations Act, 2002 after a limitation period has expired.

The appellants appealed a damage award made under s. 6(6)(d) of the Arthur Wishart Act, arguing the respondent was not entitled to recover $82,127.49 paid to clear a prior franchisee's debt.

The Court of Appeal dismissed the appeal, finding that the payment constituted a loss incurred in acquiring, setting up, and operating the franchise, and was therefore compensable under the Act.