Chris G. Paliare

The defendants in a personal injury action appealed a costs award of $578,742.28 following a jury trial where the plaintiffs were awarded $144,013.07 in damages.

The defendants had made an offer to settle for $145,000 plus prejudgment interest.

The Court of Appeal found that while the offer was timely, the defendants failed to prove it exceeded the judgment due to uncertainty regarding the prejudgment interest rate.

However, the Court held that the trial judge erred by failing to consider the offer under Rule 49.13 and by ignoring the vast disparity between the amount claimed ($1.9 million) and the amount recovered.

The costs award was wholly disproportionate and was reduced to $100,000.

The appellant appealed a jury verdict and a trial judge's decision dismissing her action for damages arising from a motor vehicle accident.

The jury found that the appellant had recovered from her injuries and awarded $58,000 for loss of competitive advantage, while the trial judge ruled she did not meet the statutory threshold under the Insurance Act.

The Court of Appeal dismissed the appeal, finding that the jury's conclusion on causation was supported by the evidence and not internally inconsistent, and that the trial judge properly dismissed the action because the appellant failed to establish that her ongoing medical issues were caused by the accident.

The appellant was injured in a motor vehicle accident in 2002 but did not commence an action until 2011.

The motions judge granted summary judgment dismissing the action as statute-barred, finding that a reasonable person would have investigated the ongoing back pain and discovered the serious and permanent nature of the injury well before 2009.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusion on discoverability and noting the appellant adduced no evidence of individual characteristics that would have prevented her from discovering the claim earlier.

The appellant purchased a property from the respondent and later sought to void the transaction under s. 197(4) of the Environmental Protection Act, alleging it was not provided with a copy of a Director's Order requiring remedial work.

The application judge found that the respondent had provided the order, based on a holistic review of the evidence.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's factual inferences or his refusal to draw an adverse inference for a failure to call a specific witness.

The appellant, MasterCard, sought to stay an Ontario action brought by the respondent, Aldo, on the basis of a New York forum selection clause contained in agreements to which Aldo was not a party.

Aldo's claims arose from a cybercrime attack and subsequent data security assessments imposed by MasterCard and collected by Moneris.

The Court of Appeal upheld the motion judge's decision dismissing the stay, finding that Aldo's claims were direct tort claims rather than subrogated contractual claims.

The Court declined to apply the 'closely related' doctrine to bind Aldo to the forum selection clause, as it was not foreseeable that the clause would apply to its claims.

The applicant purchaser sought to void a commercial real estate transaction and recover $5.913 million from the respondent vendor, claiming the vendor failed to provide a copy of an environmental Director's Order prior to closing as required by s. 197 of the Environmental Protection Act.

The court dismissed the application, finding on a balance of probabilities that the vendor did provide the order.

Alternatively, the court held that the applicant was estopped from voiding the transaction because its solicitors had represented to the vendor prior to closing that they had no outstanding concerns regarding the receipt of the order.

The applicant players' association brought an urgent application for judicial review of an arbitrator's decision declaring himself functus officio.

The arbitrator had refused to make a decision in accordance with the court's earlier reasons quashing his previous decision regarding a player's contract option.

The court granted the application, abridged the time for service, declared the arbitrator was not functus, and remitted the matter back to him to render a decision on the basis that the respondent club did not validly exercise the option to require the player to play a third year.

The applicant union sought judicial review of an arbitrator's decision holding that a player was contractually obligated to play a third season for the respondent football club.

The union argued the contract was voidable because the club negotiated with an unregistered contract advisor, and that the club's exercise of the option year was unclear.

The court granted leave to hear the application as a single judge due to urgency.

The court found the arbitrator's decision not to void the contract was reasonable.

However, the court quashed the arbitrator's decision regarding the option year, finding that the letter sent to the player was confusing and did not clearly exercise the option.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that denied her entitlement to loss of earnings benefits due to her failure to accept offers of modified duties from her employer.

The applicant argued she was not given proper notice of the possible permanent termination of her benefits.

The Divisional Court found that the Tribunal's decision was reasonable, as there was ample evidence supporting the finding of notice and the applicant's capability to perform modified work.

The application for judicial review was dismissed.

Following the abandonment of a motion seeking court approval of a third‑party litigation funding agreement in a proposed class proceeding, the respondents sought costs under Rule 37.09(3) of the Rules of Civil Procedure.

The applicant argued that the costs decision should be deferred to the certification motion, that no costs should be awarded due to the novelty of the issues, or alternatively that a reduced amount should be ordered.

The court held that the normal rule applies that a responding party is entitled to costs when a motion is abandoned.

While costs were warranted, the amount claimed on a partial indemnity basis was excessive.

The court reduced the award and ordered costs payable to the respondents in the amount of $7,000, all inclusive.

The plaintiff was awarded $50,000 in damages by a jury following a motor vehicle accident, despite claiming over $1 million.

The trial judge initially set aside the verdict and awarded the plaintiff $196,695 in costs.

The Court of Appeal previously reinstated the jury verdict and remitted the costs issue.

The trial judge again awarded $196,695 in costs.

The defendants appealed the second costs order.

The Court of Appeal allowed the appeal, finding that the trial judge failed to properly apply the principle of proportionality, and reduced the costs award to $166,695.

The plaintiff brought an urgent motion seeking injunctive relief and an Anton Piller order against former employees and a competing corporation.

Evidence indicated that one former employee downloaded thousands of confidential corporate files prior to leaving employment and that the defendants were using the information to compete for the plaintiff’s principal customer.

Applying the three‑part test for interlocutory injunctions under the Courts of Justice Act and the Rules of Civil Procedure as articulated in RJR‑MacDonald Inc. v. Canada (Attorney General), the court found a serious issue to be tried, irreparable harm to the plaintiff’s business, and that the balance of convenience favoured the plaintiff.

The court held that the defendants’ conduct arguably breached contractual confidentiality obligations, restrictive covenants, and duties of confidence.

Injunctive relief restraining the defendants’ conduct was granted.

A corporation sought an order under the Solicitors Act referring a law firm’s legal accounts to assessment.

The corporation had indemnified a former executive for defence costs in regulatory proceedings and had paid most of the law firm’s accounts over a two‑and‑a‑half‑year period.

The court held that accounts paid more than twelve months before the application were final accounts and therefore statute‑barred from assessment absent fraud or misconduct.

Accounts paid within twelve months were not subject to assessment because the applicant failed to establish “special circumstances.” However, three recent unpaid accounts were referred to assessment as it was just and equitable given the breakdown in the parties’ relationship.

The appellant municipality appealed a decision of the Ontario Municipal Board that granted nine minor variances for a mixed-use development.

The appellant argued the Board failed to conduct an independent analysis of the four-part test under s. 45(1) of the Planning Act, relied on irrelevant factors, and reversed the onus of proof.

The Divisional Court dismissed the appeal, finding the Board's decision was reasonable, transparent, and did not reverse the legal onus or rely on irrelevant factors.

Following the release of its reasons for judgment, the Court of Appeal received submissions from the parties regarding the costs of the application.

The court awarded costs of the application below to the appellant, fixed at $17,000 inclusive of disbursements and HST.

The plaintiff was injured in a single-vehicle accident allegedly caused by an unidentified driver.

He sought coverage under his automobile insurance policy's Family Protection Coverage Endorsement (OPCF 44R), relying on the evidence of his passenger and then-girlfriend to meet the corroboration requirement.

The insurer appealed a motion judge's ruling that the passenger's evidence could constitute 'independent witness evidence' despite her close personal relationship with the plaintiff and her own financial stake in the outcome.

The Court of Appeal dismissed the appeal, holding that the independence requirement applies to the evidence itself—meaning it must come from a source extraneous to the claimant—rather than requiring the witness to be entirely neutral.

The appellant, a technical sales representative, was terminated after 17 years of employment.

He sought a declaration that a restrictive covenant in his employment contract, which prohibited him from competing with the respondent for one year by dealing with any of its customers, was unenforceable.

The application judge dismissed the application, finding the covenant reasonable.

On appeal, the Court of Appeal found the covenant overly broad and unworkable in practice, as the appellant had no way of knowing all of the respondent's customers over the past 17 years.

The appeal was allowed and the restrictive covenant was declared unenforceable.

The appellants appealed the trial judge's order for a re-trial, which was based on a finding that the jury's answers regarding damages were inconsistent.

The Court of Appeal allowed the appeal, finding that the jury's answers were not inconsistent and that there was evidence to support their findings on past and future wage loss and general damages.

The jury's verdict was reinstated, and the issue of costs was remitted to the trial judge.

The appellants, a law firm and its partner, appealed a partial summary judgment finding that a cause of action for solicitor's negligence had been validly assigned to the respondent, Gentra Canada.

The Court of Appeal held that a claim for solicitor's negligence is assignable if the assignee has a legitimate commercial interest, departing from older jurisprudence.

The Court found the assignment language was broad enough to include the claim and that Gentra Canada could sue in its own name without joining the assignor.

However, the appeal was allowed with respect to a subsidiary company that was not a party to the assignment.

The tenants appealed a Divisional Court decision that reversed a Landlord and Tenant Board order granting a 2.5% rent reduction.

The Board had found that the landlord's removal of fenced-in gardens to build townhouses constituted a reduction in 'common recreational facilities'.

The Court of Appeal held that the Divisional Court erred in applying a correctness standard of review, finding that reasonableness was the appropriate standard.

While the Board's finding that the landscaped areas were 'common recreational facilities' was reasonable, its conclusions that there was a 'reduction' in facilities and its calculation of the rent reduction were unreasonable.

The appeal was dismissed.