Christopher Du Vernet

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 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.

The Crown brought a Rule 21 motion to strike various paragraphs and counterclaims from the Statements of Defence of Sanjay Madan, Shalini Madan, Chinmaya Madan, and Ujjawal Madan.

The Crown alleged that the pleadings contained untenable claims of contributory negligence, frivolous and vexatious allegations, and counterclaims that were not tenable in law, including claims of direct tort liability against the Crown and vicarious liability for intrusion upon seclusion.

The court granted the Crown's motion, finding that the defence of contributory negligence is not available for fraud, the Crown is immune from direct tort liability for systemic negligence, and no private law duty of care or vicarious liability for intrusion upon seclusion was established based on the facts pleaded.

The court also struck pleadings related to the Crown's conduct in the litigation as improper.

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.

The plaintiff brought a motion to certify a class action against TransUnion arising from a data breach where hackers accessed the credit profiles of 37,444 individuals.

The plaintiff alleged intrusion upon seclusion, negligence, and breach of provincial privacy statutes.

The court certified the negligence and certain provincial privacy statute claims, finding they disclosed a cause of action and met the certification criteria.

However, the court refused to certify the intrusion upon seclusion claim, as binding authority established it does not apply to database defendants for hacker attacks, and struck claims under the privacy statutes of Manitoba, Newfoundland and Labrador, and British Columbia for lack of subject matter jurisdiction.

The plaintiff obtained an ex-parte Mareva injunction and an interim preservation order against the defendants, who allegedly defrauded a government COVID-19 relief program of at least $11 million.

The moving party brought a motion to vary the Mareva injunction to access frozen funds for legal and living expenses.

The court dismissed the motion, finding that the moving party failed to make full disclosure of his worldwide assets and did not discharge the onus of proving that he and his family had no other assets available to pay their expenses.

The defendant, Gore Mutual Insurance Company, brought a motion to consolidate two actions (CV-19-108 and CV-19-109) commenced by the plaintiffs, David Coon and Susan Leslie Coon.

Both actions arose from property damage due to a tree falling and subsequent flooding.

The first action ("Coverage Action") concerned the denial of an insurance claim for a destroyed rental unit, based on contractual interpretation.

The second action ("Negligence Action") related to the defendant's alleged negligent instruction to stop mitigation efforts, leading to further property damage.

The court applied Rule 6.01 of the Rules of Civil Procedure and a detailed 17-factor test for consolidation, finding that despite common parties and originating incident, the legal issues and heads of damages were distinct.

The motion for consolidation was dismissed, with the court ordering that the actions be tried together or one after the other as determined by the trial judge.

Costs were awarded to the plaintiffs.

The defendants brought a motion to amend the class definition in a certified data breach class action.

They sought to narrow the class to persons who had active leases or loans with Nissan during a specific period, based on evidence that the stolen data sample only contained information from that timeframe.

They also sought to exclude corporate customers.

The court granted the motion to amend the timeframe, finding it supported by the evidence, but declined to exclude corporate customers at this stage, holding that the issue of whether corporations can claim intrusion upon seclusion should be determined as a separate question of law.

Following a partially successful certification motion in a privacy breach class action, the plaintiffs sought costs of $532,162.17.

The court found the requested amount excessive and unreasonable due to over-litigating, over-staffing, and over-docketing.

Noting the plaintiffs' mixed success and last-minute changes to their case that prejudiced the defendants, the court reduced a reasonable starting point of $160,000 by half, awarding the plaintiffs $80,000 all-inclusive.

The plaintiffs brought a motion to certify a class action against Nissan following a data breach where an unknown employee accessed and stole the personal information of thousands of customers, demanding a ransom.

The court found that the plaintiffs satisfied the certification requirements under s. 5(1) of the Class Proceedings Act.

The court certified common issues relating to vicarious liability for the tort of intrusion upon seclusion, negligence, aggregate damages, and punitive damages, while narrowing the proposed class definition.

Two competing consortiums of class counsel brought a carriage motion to determine who would represent the proposed class in a national class action against Marriott regarding a massive data breach.

The court evaluated the standard carriage factors, finding most to be neutral.

The determinative factor was the interrelationship of class actions in multiple jurisdictions.

The court favoured the Winder Action because its counsel did not concede the necessity of overlapping regional class actions and was prepared to use multi-jurisdictional protocols to resolve the overlapping claims, whereas the Kogut Action consortium planned to run multiple overlapping actions across Canada.

Carriage was granted to the Winder Action and the competing actions were stayed.

The appellant sought a declaration that he was the legal owner by adverse possession of land formerly part of a railway corridor contiguous to his backyard, which was owned by the City of Niagara Falls.

The application judge denied the application, finding that the appellant failed to prove the third element of the adverse possession test: that the City had been effectively excluded from possession of the disputed land in the ten years immediately prior to July 19, 1999.

The Court of Appeal upheld this decision, finding no error in the application judge's conclusion and dismissing the appeal with costs awarded to the City.

The respondent, the City of Niagara Falls, successfully defended an application by Michael Richard for a declaration of ownership by adverse possession of disputed public land.

The City subsequently requested its costs.

The court awarded partial indemnity costs to the City, finding no reason to deviate from the general rule that a successful party is entitled to costs.

The application was deemed important to both parties and moderately complex due to the historical nature of the evidence and the involvement of public land, but not unique or novel.