Carlin McGoogan

The applicants, neighbours of the respondent, brought a nuisance claim alleging that the respondent's year-round use of a woodstove emitted toxic smoke and that he engaged in retaliatory noise bombing with outdoor speakers.

The court found the applicants' evidence lacked credibility, noting their complaints had evolved over time and were unsupported by expert evidence, while multiple complaints to authorities had resulted in no enforcement action.

The court preferred the respondent's evidence and dismissed the application, finding no substantial interference with the applicants' property enjoyment.

The respondent was awarded $25,000 in costs.

The appellant property owners association appealed the dismissal of its action in proprietary estoppel, claiming it had acquired an easement over a City-owned water lot where it had installed seasonal docks for decades.

The trial judge found that the City's 1956 policy permitting the dock was not contractual and the City never made an unambiguous promise not to revoke it.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the requirements for proprietary estoppel were not met.

Following dismissal of the plaintiff’s proprietary estoppel claim, the defendant municipality sought substantial indemnity costs, or alternatively partial indemnity costs.

The court held the matter raised no novel legal issue and was decided largely on fact-specific findings, while finding no unreasonable litigation conduct by either side.

The court declined to apply enhanced offer-to-settle consequences under rule 49.10, treating the offer as effectively impracticable in the circumstances.

Applying proportionality and indemnity principles, the court awarded the successful defendant partial indemnity costs fixed at $143,519.71 inclusive of fees, disbursements, and HST, payable forthwith.

The court dismissed GIPOA’s claim for proprietary estoppel against the City of Orillia regarding the use of docks on a city-owned water lot.

The court found that the City had not made an unambiguous promise or assurance to GIPOA, that GIPOA’s reliance was not reasonable, and that the public interest and municipal legislative authority outweighed any equitable claim.

The City’s enforcement of its policies and by-laws was found to be reasonable, and the City was entitled to change its policies and by-laws as circumstances required.

The plaintiff, Lynn Sraha-Yeboah, brought claims against Gregory Jewell and Matthew Jewell for intrusion upon seclusion, alleging that they conducted audio and video surveillance of her in a jointly owned home, including through hidden cameras.

The defendants moved for summary dismissal, relying primarily on a mutual release signed between Lynn and Gregory.

The court found that the release could not bar claims arising from breaches of solicitor-client privilege that occurred during its negotiation, nor could it benefit Matthew, who was not a party to the release.

The court also rejected arguments that Lynn had no reasonable expectation of privacy, that her damages were too remote, and that her claims were barred by estoppel or abuse of process.

The motions for summary judgment were dismissed, and costs were awarded to the plaintiff.

The defendants brought a motion to admit a supplementary affidavit from Bibi Goriah, sworn after cross-examinations, to be considered at a summary judgment motion.

The plaintiffs opposed, arguing prejudice and a violation of the rule in Browne v. Dunn.

The court applied the four-part test under Rule 39.02(2) of the Rules of Civil Procedure, finding the evidence relevant and that any potential prejudice could be mitigated by allowing the plaintiffs further cross-examinations and the opportunity to file reply evidence.

The court also considered counsel's oversight as a factor.

The motion to admit the affidavit was granted, but costs were not awarded to the successful defendants due to the legitimate concerns raised by the plaintiffs.

The Madan Defendants, subject to a Mareva injunction, brought a motion to vary a prior order to access additional funds for legal expenses from their frozen assets.

They sought to either remove a cap or access an additional $883,682.78.

The court applied the four-part test for varying Mareva injunctions for legal fees, finding the defendants had no other assets and the funds were not subject to a proprietary claim by the plaintiff.

While acknowledging the complexity and unanticipated factors increasing legal fees, the court found some budgeted items moot or premature.

The motion was partially granted, allowing access to an additional $587,433.33, and an enhanced monthly reporting protocol for legal expenditures was imposed.

This is an appeal from a pleadings motion where the Crown (Ontario) sued Sanjay Madan and his family (appellants) for fraud.

The appellants counterclaimed, alleging contributory negligence by Ontario, misuse of a Mareva injunction, vicarious liability for Sanjay's intrusion upon seclusion, and direct/vicarious negligence by Ontario.

The motion judge struck these parts of the pleadings and refused leave to amend.

The Court of Appeal dismissed the appeal, affirming that a victim's negligence is not a defence to fraud, the "clean hands" doctrine does not apply to mere carelessness, and claims related to the Mareva injunction were unsupported.

The Court further held that Ontario could not be vicariously liable for Sanjay's intrusion upon seclusion as there was no nexus between his employment and the privacy violation, and that Crown liability in tort is vicarious, not direct, requiring proximity to identified Crown employees for negligence claims.

The plaintiff brought a consent motion to discontinue a proposed class action regarding a data breach involving Capital One.

The action had previously been stayed following a carriage motion where another action was granted carriage, but the stay was lifted after the other action was denied certification.

The court approved the discontinuance under section 29 of the Class Proceedings Act, 1992, finding that the test for discontinuance was met and ordering notice to be posted on class counsel's websites.

This is an appeal from a motion judge's refusal to certify a claim for intrusion upon seclusion against Trans Union of Canada, Inc. in a class action.

The appellant alleged that Trans Union, a "Database Defendant" enabled third-party hackers to access private information due to inadequate security.

The Court of Appeal for Ontario dismissed the appeal, holding that the tort of intrusion upon seclusion, as recognized in Jones v. Tsige, does not extend to "Database Defendants" for the actions of independent third-party hackers, as there is no basis for vicarious liability in such circumstances.

The court also confirmed its jurisdiction to hear the appeal, treating the refusal to certify as a final order effectively dismissing the claim.

The plaintiff, Ontario, obtained a worldwide Mareva injunction against the defendants in relation to an alleged kickback scheme and fraud.

The moving defendants sought to vary the injunction to permit the sale of two properties to fund their civil and criminal legal expenses, as well as living and therapy expenses.

The court determined that the injunction was non-proprietary, as Ontario failed to establish a direct link between the misappropriated funds and the specific properties to support a constructive trust.

The court granted the motion, allowing the properties to be sold and the proceeds used for reasonable legal and living expenses, subject to accounting requirements.

The plaintiff, Ontario, brought a motion for leave to amend its statement of claim to increase damages, provide further particulars of alleged kickback schemes, and add additional defendants in a civil fraud action.

The defendants and proposed added defendants opposed the motion, arguing the proposed amendments lacked particularity, used vague 'and/or' formulations, and failed to meet the minimum level of material fact disclosure.

The court agreed that several proposed paragraphs were deficient as they did not clearly identify which allegations were made against which specific defendants.

The motion was dismissed, but the plaintiff was granted leave to renew its motion with a properly drafted amended pleading.

Following the dismissal of the plaintiff's action on a summary judgment motion, the successful defendant sought partial indemnity costs of $59,338.05 plus disbursements.

The plaintiff objected, arguing the amount was excessive compared to his own costs.

The court found the defendant's costs reasonable given the complexity and lengthy factual history of the matter, noting it is easier to make unsubstantiated allegations of bad faith than to refute them.

Costs were fixed at $60,000 inclusive of disbursements and HST.

The defendants moved to stay the plaintiff's action under s. 7(1) of the Arbitration Act, 1991, arguing the dispute over a promissory note was subject to an arbitration clause in a related Master Cannabis Agreement.

The plaintiff argued the promissory note was a standalone agreement not subject to arbitration.

The court found the agreements were inextricably intertwined and the dispute fell within the broad scope of the arbitration clause.

Finding no exceptions under s. 7(2) applied, the court granted the motion and stayed the action.

The plaintiff physician sued the College of Physicians and Surgeons of Ontario for abuse of process and intentional infliction of mental distress after his medical license was revoked.

The College moved for summary judgment or to strike the claim.

The court granted summary judgment dismissing the action, finding that the plaintiff's claims were incapable of proof due to the absolute bar on admitting College proceeding records under s. 36(3) of the Regulated Health Professions Act.

Furthermore, the College and its committees were protected by absolute privilege, judicial immunity, and statutory good faith immunity under s. 38 of the Act.

The court issued an endorsement regarding costs following an appeal.

The defendant sought her costs.

The plaintiff argued costs should be denied due to the defendant's conduct giving rise to the litigation.

The court rejected this argument, noting the defendant's conduct in the litigation was appropriate.

Costs were awarded to the defendant in the amount of $2,500 for leave and $5,000 for the appeal, though limited because the co-defendant hospital made the majority of the submissions.

The defendants appealed a decision certifying a class action for intrusion upon seclusion.

The claim arose after a hospital nurse improperly accessed thousands of patient records to steal narcotics from an automated dispensing unit.

The Divisional Court allowed the appeal and set aside the certification order, finding that the nurse's fleeting access to limited health information for the sole purpose of stealing drugs did not meet the 'highly offensive' threshold required for the tort of intrusion upon seclusion.

The moving party brought a motion for leave to appeal an order dated November 4, 2021.

The Divisional Court dismissed the motion for leave to appeal.

No costs were ordered as no costs outlines were provided.

The moving party, a physician whose certificate of registration was revoked by the College of Physicians and Surgeons, brought a motion for an extension of time to appeal the Discipline Committee's misconduct and penalty decisions.

The moving party argued that his delay was due to financial strain, lack of legal knowledge, and ineffective assistance from his non-lawyer agent at the penalty hearing.

The Divisional Court dismissed the motion, finding that the moving party had not formed a bona fide intention to appeal within the relevant time, failed to adequately explain the lengthy delay, and did not demonstrate that the proposed appeal had merit.

The Crown and the Madan Defendants brought competing motions regarding the use of funds frozen under a Mareva injunction for legal and living expenses.

Following the disposition of the motions, the Madan Defendants sought costs on a substantial indemnity scale, arguing the Crown's conduct was calculated to undermine their solicitor-client relationship.

The court found the Crown did not act improperly and awarded costs to the Madan Defendants on a partial indemnity scale, fixed at $150,000, reflecting their overall success on the motions.