Daniel Allan Schwartz

This decision concerns an appeal under section 45(2) of the Arbitration Act, 1991, from an arbitral award regarding four disputes arising out of a major public-private partnership infrastructure project (Highway 427 expansion).

The appellant, His Majesty the King in Right of Ontario (as represented by the Minister of Transportation and Ontario Infrastructure and Lands Corporation), challenged the arbitral tribunal’s interpretation of the Project Agreement on four issues: the Crossfall Dispute, the Zenway Boulevard Dispute, the 407 ETR Dispute, and the 2014-2016 Dispute.

The court held that the tribunal correctly identified and applied the principles of contractual interpretation, found no extricable errors of law, and dismissed the appeal.

The court determined the scale and quantum of costs following previous motions.

Primont Homes (Vaughan) Inc. sought substantial indemnity costs, arguing delay and unproven fraud allegations by the defendants, Maplequest (Vaughan) Developments Inc. and 2373480 Ontario Inc. The defendants argued for reduced partial indemnity costs due to mixed success and over-lawyering by Primont.

The court found partial indemnity was appropriate, rejecting substantial indemnity as the fraud allegations were not adjudicated on their merits.

The court also reduced Primont's requested quantum due to its unsuccessful abuse of process argument and duplicative work by its multiple timekeepers, ultimately awarding $140,000.00 in partial indemnity costs.

The plaintiff, Primont Homes (Vaughan) Inc., sought an interlocutory injunction to prevent the defendants, Maplequest (Vaughan) Developments Inc. and 2373480 Ontario Inc., from dealing with certain land lots, asserting a contractual right to acquire them.

The defendants moved to dissolve an existing interim injunction, arguing the plaintiff failed to provide an adequate undertaking as to damages and made material non-disclosures.

The court dismissed the defendants' motions to dissolve the interim injunction, finding them precluded by Rule 2.02 due to significant delay.

The court then granted the plaintiff's motion for an interlocutory injunction, determining there was a serious issue to be tried regarding the enforceability of the agreement and entitlement to specific performance, that the plaintiff would suffer irreparable harm due to the primary defendant's inability to satisfy a damages award, and that the balance of convenience favored maintaining the injunction.

The court also found the plaintiff's undertaking as to damages sufficient given the defendants' failure to quantify their potential damages from delay.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning the interpretation of an easement.

The primary issue was whether an easement for "vehicular and pedestrian access and egress" included the right to park.

The application judge had ruled it did not.

The appellant (Friuli Long Term Care) argued the application was speculative and that parking rights were ancillary or an easement of necessity.

The cross-appellant (Primont (Castelmont) Inc.) sought an additional declaration regarding redevelopment.

The Court of Appeal dismissed both the appeal and the cross-appeal, affirming the application judge's finding that the easement did not include parking rights and that parking was a contractual matter.

The court also upheld the refusal of the additional declaration due to procedural issues.

The moving party brought motions to strike an affidavit, for a sealing order, and for leave to appeal a costs order.

The Divisional Court dismissed all motions, permitting the responding party to redact its materials to remove allegedly privileged information.

Costs of $5,000 were awarded to the responding party for the motion for leave to appeal.

The court held a voir dire to determine the testimonial capacity of the applicant, Barbara Cohen, who suffers from mild dementia.

The respondents argued she had capacity, while her counsel argued she lacked it.

Based on expert reports from two geriatric specialists (Dr. Joel Sadavoy and Dr. Richard Shulman) and the court's own questioning of Barbara, the court found that the applicant lacked the capacity to testify due to inconsistent memory, difficulty communicating complex ideas, and potential for increased anxiety under cross-examination.

The court ruled that her previous questioning transcripts would be filed instead of compelling her live testimony.

The appellant buyer appealed a decision dismissing its motion for production of the respondent sellers' lawyer's file.

The appellant argued that the respondents impliedly waived solicitor-client privilege by pleading that they relied on legal advice in good faith when exercising a solicitor approval clause to terminate a real estate transaction.

The Divisional Court dismissed the appeal, holding that a denial of bad faith and an assertion of good faith reliance on legal advice does not amount to an implied waiver of privilege.

The court also found no error in the motion judge's interpretation of the solicitor approval clause.

The applicant brought a motion for extensive financial disclosure from the respondents and non-parties in the context of a bifurcated trial.

Phase 1 of the trial was ordered to solely determine the validity of the marriage contracts.

The applicant argued the disclosure was necessary to assess the value of the estate for the fairness consideration under the Levan test and to respond to the defence of laches.

The court dismissed the motion, finding that the exact value of the estate was not necessary for Phase 1 and that ordering the disclosure would undermine the purpose of the bifurcation order.

The appellant owner appealed a summary judgment finding it liable to pay a subcontractor directly for amounts owed by the contractor, pursuant to a termination agreement.

The Divisional Court dismissed the appeal on the merits, finding the motion judge made no palpable and overriding error in concluding the owner agreed to pay the subcontractor's outstanding balance.

However, the court set aside the motion judge's award of 24% interest, finding the issue was not properly addressed, and directed the parties to provide further written submissions on the proper calculation of interest.

The applicant sought a declaration that mutual easements among the parties, which granted rights for vehicular and pedestrian access and egress, did not include the right for users to park on each other's lands.

The court found that the easements unambiguously dealt only with access and egress, and that parking rights were contractual obligations established through separate agreements, such as a Site Plan Agreement and a tripartite agreement, rather than property rights conveyed by the easements.

The application was granted, and the counter-application was dismissed.

The proposed appellant brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal concerning a pleading amendment, but granted leave to appeal concerning privilege and the real estate solicitor's file.

As success was divided, no costs were awarded.

Capital Sewer Servicing Inc. appealed a Superior Court decision that found it liable to indemnify and defend Crosslinx Transit Solutions Constructors under a subcontract.

The dispute arose from property damage claims by third parties during a light rail transit project.

Capital argued that Crosslinx, by undertaking to provide wrap-up insurance, had assumed the risk of such damages, and that the "hold harmless" clause did not include a duty to defend.

The Court of Appeal dismissed the appeal, affirming that a covenant to insure does not, as a matter of law, automatically transfer risk.

The court emphasized that contractual intent is derived from a holistic reading of the agreement, and found the subcontract's express indemnity provisions, coupled with the mutual intent clause, clearly imposed the obligation on Capital.

The "hold harmless" provision was also found to include a duty to defend, given the broad definition of "Claims" in the contract.

Following motions by both parties regarding refusals and questions taken under advisement during questioning, the Estate Trustee was largely successful.

Both parties sought costs of the motions.

The court determined the Estate Trustee's entitlement to costs as the successful party and fixed the quantum on a partial indemnity basis at $25,200, plus $500 for a prior appointment, payable by the applicant.

The respondent estate brought a motion on the first day of trial to amend its Answer to include the equitable defence of laches against the applicant's claim to set aside a marriage contract.

The applicant opposed the motion, arguing that laches is not a legally tenable defence to a statutory claim under section 56(4) of the Family Law Act and that the amendment would cause uncompensable prejudice.

The court granted the motion, finding that a claim for declaratory relief under section 56(4) is equitable in nature and can be defended by laches.

The court also found that any disadvantage to the applicant could be compensated by costs, an adjournment, or trial management.

The moving parties sought leave to appeal from the decisions of Corthorn J. and Shelston J. The Divisional Court dismissed the motion for leave to appeal in writing and awarded costs of $7,500 to the responding party.

This application concerned a dispute over contractual indemnity and duty to defend obligations between a general contractor (Crosslinx) and its subcontractor (Capital Sewer Servicing Inc.) following property damage claims related to a construction project.

Capital argued that a "Wrap Up" insurance policy, under which it was a Named Insured, negated its indemnity obligations.

The court rejected Capital's argument, emphasizing that specific indemnity provisions in the subcontract took precedence over general insurance clauses, and that the requirement for Capital to obtain its own liability insurance implied an assumption of risk for its negligence.

The court granted Crosslinx's application, confirming Capital's duty to indemnify and defend, and dismissed Capital's cross-application.

In a bifurcated family law and estate proceeding, both the applicant and the respondent estate brought motions to compel answers to questions refused or taken under advisement during questioning.

The central issue for the first phase of the trial was the validity and enforceability of a 1986 marriage contract.

The court ordered the applicant to produce documents relating to her prior divorce and records from her physician and counsellor, finding them relevant to her understanding of domestic contracts.

The court dismissed the applicant's motion to compel the estate trustee to answer questions regarding the deceased's subsequent estate planning and relationships with lawyers, finding them irrelevant to the 1986 contract or overly broad.

The moving parties (the Crosslinx Defendants) sought an order under Rule 49.09 to enforce a settlement reached with the plaintiff.

The parties disagreed on the scope and form of the release to be signed by the plaintiff.

The court held that without prejudice communications were admissible to determine the scope of the settlement.

The court further held that the parties bargained for a standard general release, which implicitly includes claims over and contribution/indemnity clauses, and ordered the plaintiff to execute the release with those terms included, subject to minor clarifying revisions.

The applicant and the respondent estate both brought motions under Rule 20(5) of the Family Law Rules to question a non-party lawyer who had advised the applicant on a marriage contract over 30 years ago.

The non-party opposed the questioning, suggesting written interrogatories instead.

The court found that the three-part test for questioning a non-party was met, as the lawyer's evidence was crucial to the validity of the marriage contract and could not be easily obtained by other methods.

Given the lawyer's advanced age and the importance of his evidence, the court also ordered that the questioning be recorded to preserve the evidence for trial, analogous to Rule 36 of the Rules of Civil Procedure.

The respondents brought a motion to vary a consent order registered on title to land, seeking to limit its application to only lots relevant to the dispute.

The applicants opposed, citing the respondents' breaches of obligations under the consent order and minutes of settlement, and concerns about related companies.

The court dismissed the motion, finding that the respondents did not meet the high threshold to vary a consent order, as the "new facts" (PIN assignments) were foreseeable, and the respondents had demonstrated a disregard for their obligations, justifying the applicants' concerns about security.