Christopher John Niemeier Du Vernet

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 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 plaintiffs brought an action against a child welfare agency following the suicide of a teenager in its care.

After the expiry of the two-year limitation period under the Trustee Act, the plaintiffs sought to add a doctor and a hospital as defendants, arguing that the late discovery of a clinical note constituted special circumstances or fraudulent concealment.

The moving parties brought summary judgment motions to dismiss the action against them as statute-barred.

The court granted the motions, finding no evidence of fraudulent concealment and concluding that the plaintiffs' delay in pursuing the action and seeking to add the parties did not justify extending the limitation period.

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 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 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 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 defendants brought motions for leave to appeal an order regarding Rule 20 summary judgment motions and a class action certification motion.

The Divisional Court granted leave to appeal with respect to the Rule 20 motions and the certification criteria under section 5(1)(a) of the Class Proceedings Act, 1992.

Costs of the leave motions were fixed at $2,500 to the successful party on the appeal.

The defendants brought a motion for leave to appeal the decision of Justice Belobaba dated October 29, 2019.

The Divisional Court dismissed the motion for leave to appeal.

Costs of the motion were awarded to the responding parties, the plaintiffs, fixed in the amount of $35,000.

The defendant moved to strike a new action for unjust enrichment as an abuse of process, arguing the plaintiff should have sought leave to add her to an existing related action.

The plaintiff cross-moved to consolidate the actions.

The defendant also moved to stay the action or strike the plaintiff's affidavit because the plaintiff spoke to his counsel during a break in a virtual cross-examination.

The court dismissed the motion to strike, finding the new action was not an abuse of process as it involved a new party.

The court allowed the consolidation motion.

While the court found a breach of cross-examination rules occurred during the virtual break, it held that staying the action or striking the affidavit was a disproportionate remedy given the innocuous nature of the discussion.