Christopher John Niemeier Du Vernet

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.

Following the disposition of the appeal, the Court of Appeal issued a costs endorsement.

The successful respondents were awarded costs on a partial indemnity basis.

The appellant was ordered to pay $6,375.58 to the respondent university and $6,000 to the respondent professional corporation and individual.

The appellant appealed a motion judge's order dismissing her action against the respondent university under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, and an abuse of process.

The appellant sought to relitigate issues regarding her law school transcript that had been previously dismissed in civil and human rights proceedings.

The Court of Appeal found no error in the motion judge's conclusion that the action was an abusive relitigation and barred by cause of action estoppel.

The appeal was dismissed.

The Court of Appeal previously dismissed the appeal and awarded costs of $3,500 to the respondent.

Unbeknownst to the panel, the parties had reached an agreement that if the appeal was dismissed, the respondent would receive $11,000 for costs.

The court amended its reasons to reflect the parties' agreement, awarding $11,000 in costs to the respondent.

The appellant appealed the dismissal of her counterclaim for intentional infliction of mental distress, negligence, and other claims following a summary trial.

The dispute arose from a history of conflict between neighbours, including previous vandalism by the respondent.

The Court of Appeal found no palpable and overriding error in the trial judge's factual findings, including his rejection of the appellant's psychological evidence.

The court also upheld the trial judge's discretionary decision not to grant a permanent injunction.

The appeal was dismissed.

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.

The applicant sought a declaration of ownership by adverse possession of a strip of land owned by the respondent municipality.

The court applied the three-part test for adverse possession, particularly focusing on the "inconsistent use" test for municipal land held for public benefit.

While the applicant's predecessors had actual possession and intended to exclude the public, the court found that planting trees did not effectively exclude the City, as the land remained connected to a public trail and the use was not inconsistent with the City's intention to hold the land for future public use.

The application was dismissed.

This addendum to reasons for summary judgment addressed the disposition of a $50,000 US gift intended for a property for pilgrims in Poland.

The court found that the funds were misappropriated by an associate of the Plaintiff for personal use (car purchase and condominium down payment).

Despite a clear moral obligation for the Plaintiff or its associate to repay the funds, the court determined that any legal claim for their return was time-barred by the Limitations Act, 2002, as the donor was aware of the misuse in 2014.

The court also found the Plaintiff's allegations of impropriety against the defendant to be false and awarded costs to the defendants.

The plaintiff, Maison Saint-Michel, alleged forgery, theft, and fraud against the defendants, Jacek Morawa and Canadian Institute of Divine Mercy, concerning a deceased donor's condominium gift and its proceeds.

The defendants brought a motion for summary judgment to dismiss the claim.

The court found no credible evidence to support the plaintiff's allegations, noting the plaintiff's selective disclosure in a prior injunction application and its failure to respect the donor's conditional gifts.

The court dismissed the plaintiff's action with costs, concluding that the donor's wishes were for the funds to benefit the Polish Catholic community through the defendants, not the plaintiff's general coffers.

The defendants brought a motion to strike the plaintiffs' negligence claim for mental distress arising from the death of a family member in a helicopter crash.

The defendants argued that common law precludes recovery for mental distress resulting from the negligently caused death of a human being unless the plaintiffs witnessed the accident or its aftermath.

Applying the Supreme Court of Canada's decision in Saadati v. Moorhead, the court found that geographic, temporal, and relational proximity restrictions are not absolute bars to recovery.

The court dismissed the motion, concluding it was not plain and obvious that the claim had no reasonable prospect of success.

The appellant, a long-term employee who suddenly became deaf, was subjected to a campaign of abuse by her employer designed to force her resignation.

She was ultimately fired for a frivolous reason.

The employer was noted in default in her wrongful dismissal action.

On appeal from the damages assessment, the Court of Appeal found the motion judge erred by awarding damages that were too low across several categories, including Human Rights Code violations, intentional infliction of mental distress, aggravated damages, and punitive damages.

The total damages were increased to $246,049.92, the maximum allowable under the unamended statement of claim.

Following a successful appeal, the appellant sought its trial costs.

The parties agreed on most amounts but disputed a $32,025 disbursement for environmental assessment reports prepared prior to the litigation for the purpose of a possible property acquisition.

The Court of Appeal denied the disbursement, holding that the reports were not commissioned in contemplation of litigation and their use at trial did not alter their nature as non-litigation work product.

Trial costs were fixed at $237,364.86.

The plaintiff commenced an action against his mother, sister, and others regarding a family cottage, alleging fraud and conspiracy against his sister.

The plaintiff settled with the other parties and consented to the dismissal of the action against his sister.

The sister sought costs on a substantial indemnity basis.

The court found no reason to deprive the successful sister of her costs and awarded them on a substantial indemnity scale due to the unproven allegations of fraud and conspiracy.

However, finding the claimed amount of over $400,000 excessive and disproportionate to the $300,000 value of the cottage, the court referred the bill of costs to an assessment officer before fixing the final amount.

The appellant purchased a property and subsequently discovered it was contaminated with petroleum hydrocarbons that had migrated from the respondents' neighbouring property.

The respondents had a long history of improper waste storage and non-compliance with Ministry of the Environment orders.

The trial judge dismissed the appellant's claims under s. 99(2) of the Environmental Protection Act, nuisance, and negligence, finding that the appellant failed to prove damages and that an existing MOE remediation order precluded statutory recovery.

The Court of Appeal reversed the decision, holding that the MOE order did not bar civil recovery, that restoration costs were the appropriate measure of damages under the EPA, and that the individual respondent was personally liable.

The Court awarded $1,328,000 in remediation damages and $100,000 in punitive damages.