Darla A. Wilson

The Court of Appeal remitted the issue of whether a condominium corporation (MTCC 1056) was entitled to be indemnified by its property manager (Brookfield) for costs arising from a negligent estoppel certificate.

The property manager had been found negligent in preparing the certificate, making the condominium corporation vicariously liable to the plaintiff.

The court held that an implied right of indemnity exists at common law for a principal found vicariously liable for its agent's negligence.

Brookfield was ordered to indemnify MTCC 1056 for the costs paid to the plaintiff and the costs of the trial and appeal.

The plaintiffs' medical negligence action against the defendant physician settled for $400,000 in damages prior to trial, and the parties settled liability on the morning of the trial.

The parties could not agree on costs.

The plaintiffs sought over $264,000 in costs and disbursements, arguing the defendant unreasonably delayed settlement.

The court rejected the argument for elevated costs to sanction the defendant, noting the case involved competing expert opinions.

Applying the principle of proportionality, the court reduced the plaintiffs' claimed fees and significantly reduced an expert witness's disbursement, fixing total costs at $125,000 for fees and $45,000 for disbursements.

Following a Court of Appeal order, the Superior Court of Justice conducted a trial of an issue to determine the value of the plaintiff's townhouse as a two-storey unit versus a three-storey unit as of December 2, 2014.

The plaintiff had purchased the unit believing it was three storeys, but the third floor was illegally built into the common element space.

The court evaluated competing expert appraisal evidence, ultimately preferring the plaintiff's expert who conducted a thorough inspection and appropriately applied the direct comparison approach.

The court fixed the plaintiff's damages for the loss of the third floor at $465,000.

The defendants brought a motion requesting the case management judge recuse herself, alleging bias, duplicity of proceedings, and involvement in criminal activity.

The moving party failed to attend the hearing of their own motion.

The court found the allegations to be completely unsubstantiated, specious, and devoid of merit, noting that a judge's previous unfavourable ruling is not grounds for recusal.

The motion was dismissed, and costs were awarded to the responding party on a full indemnity scale due to the moving party's objectionable conduct.

David Bain, a Managing Director, Head of Canadian M&A at UBS, was terminated without cause after 14 years of service.

He claimed damages for wrongful dismissal, including an extended notice period, unpaid bonuses for 2012 and a stub period in 2013, vacation pay, benefits, referral fees, and mitigation expenses.

The court found the appropriate notice period to be 18 months, determined that bonuses were an integral part of his compensation, and that UBS failed to exercise its discretion fairly in denying bonuses due to his termination.

The court awarded damages based on salary and bonuses, as well as other claimed expenses.

The action against UBS Securities LLC was dismissed.

The father appealed a disposition order from Justice R. Spence, which made his two children crown wards with no access, after a finding that the children were in need of protection.

The appellant challenged the trial judge's factual findings in five areas: the history of domestic violence, the mother's inability to separate from the father, the characterization of missed medical appointments, the health of one child prior to apprehension, and the mother's capacity to engage with healthcare providers and the Children's Aid Society.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of the facts, emphasizing the high degree of deference owed to trial judges in child protection cases.

The applicant law firm, Morse Shannon LLP, sought charging orders against any amounts recovered by the plaintiffs in two personal injury actions (Hughes and Nasir) where it had acted as agent counsel for the respondent solicitor, Fancy Barristers P.C. and Hassan A. Fancy.

The agency agreements were terminated, and the applicant's accounts for fees and disbursements remained unpaid.

The court granted the charging orders, finding that the applicant's work was instrumental in recovering or preserving the clients' property and that there was sufficient evidence that the accounts would not be paid.

The court also addressed the respondent's irrelevant allegations of misconduct and awarded costs to the applicant.

The City of Toronto brought an ill-conceived summary judgment motion to dismiss the plaintiffs' action for damages arising from a trip and fall, alleging late notice and prejudice.

The plaintiffs opposed and brought a cross-motion.

The City later withdrew its summary judgment motion.

The court awarded substantial indemnity costs to the plaintiffs, finding the City's motion ill-conceived, its allegations of prejudice inaccurate given its own late disclosure of documents, and its conduct during discovery unacceptable.

The defendant, Ericsson Canada Inc., brought a motion to dismiss or, alternatively, stay the plaintiff's action and compel arbitration of a dispute concerning unpaid commissions under a Sales Incentive Plan (SIP).

The plaintiff, Dahl Morrison, argued the arbitration clause was not binding, that Ontario law governed his employment, and that arbitration in Texas would be inconvenient and expensive, especially given other claims for wrongful dismissal.

The court found the SIP's arbitration clause to be clear and mandatory, requiring disputes arising from the plan to be settled by final and binding arbitration in Dallas, Texas.

Citing Section 7 of the Arbitration Act, 1991, and Supreme Court of Canada jurisprudence, the court ruled that the existence of a valid arbitration agreement ousted the court's jurisdiction.

The motion was granted, the Ontario action was stayed, and the plaintiff was directed to proceed with arbitration.

The Applicant sought a declaration of beneficial ownership over a property registered in the Respondent's name, based on claims of resulting or constructive trust and an oral agreement.

The Respondent denied these claims and sought retroactive and ongoing child support.

The court dismissed the Applicant's claim, finding no credible evidence of an oral agreement or contributions sufficient to establish a resulting or constructive trust or unjust enrichment.

The court also addressed child support, maintaining the existing order for a period and setting conditions for future adjustments based on the Applicant's financial disclosure.

The Plaintiffs, a dentist and her professional corporation, brought a motion under Rule 21.01(1)(b) to strike paragraphs 6, 7, and 8 of the Statement of Defence and Counterclaim, which pleaded the defences of justification, qualified privilege, and fair comment in a defamation action.

Alternatively, they sought an order for particulars under Rule 25.10.

The court dismissed the motion, finding that the Plaintiffs were seeking evidence rather than material facts necessary for pleading.

The court emphasized that pleadings must contain sufficient information for the opposing party to know the case to meet, but not the evidence by which facts are proved.

The court also criticized the motion as unnecessary and a waste of judicial resources.

The Appellant appealed a trial decision regarding a restraining order and a requirement to obtain leave for future family law proceedings.

The court dismissed the appeal, finding no palpable and overriding error or bias by the trial judge.

It affirmed that genuine fear of psychological harm justifies a restraining order and that requiring leave for future proceedings was appropriate given the history of high conflict between the parties.

The court also awarded costs to the Respondent's pro bono counsel.

The Plaintiffs' medical negligence action against the Defendants was dismissed after a jury found breaches of standard of care but no causation.

The Defendants, as successful parties, sought costs.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, rejected the Plaintiffs' arguments for no costs based on "divided success" access to justice concerns, or the Canadian Medical Protective Association covering the physicians' costs.

The court awarded costs on a partial indemnity basis to the Defendant Physicians and the Defendant Hospital, fixing specific amounts.

While the main Plaintiff, Jordan Sacks, was held liable for the bulk of the costs, the Family Law Act claimants (Jordan's wife and parents) were held liable for apportioned, rather than joint and several, amounts to ensure fairness given the derivative nature and comparatively modest value of their claims.

The Public Guardian and Trustee, acting as litigation guardian for a plaintiff under a disability, brought a motion under Rule 7.08 for court approval of a $65,000 settlement of his claims against police officers for alleged excessive use of force (Taser deployment).

The plaintiff's family opposed the settlement, arguing for higher damages.

The court reviewed the liability risks, including conflicting evidence on the number of Taser deployments and the application of s. 25(2) of the Criminal Code, as well as the medical evidence regarding damages.

The court concluded the settlement was fair, reasonable, and in the plaintiff's best interests, and approved the settlement along with $5,000 in costs to the PGT.

The plaintiffs brought a motion under Rule 7 for approval of a $6,625,000 settlement in a medical negligence action arising from severe birth injuries to the minor plaintiff.

The court approved the overall settlement amount but found the solicitor's proposed contingency fee of over $1.5 million to be unreasonable given the time expended and the results achieved.

The court reduced the legal fees to $1,000,000 and also reduced the proposed allocation of funds to the parents' Family Law Act claims to ensure the minor plaintiff received adequate funds for his lifelong care needs.

The plaintiffs brought a motion for partial summary judgment seeking a declaration that the defendant law firm, Aylesworth LLP, was vicariously liable for the alleged professional negligence of a solicitor, Welsh.

Welsh had a 'counsel' relationship with Aylesworth but operated his own independent practice in Oakville, through which he provided legal services to the plaintiffs regarding a fraudulent investment scheme.

The court dismissed the motion, finding no genuine issue requiring a trial.

The court held that Aylesworth was not vicariously liable because it did not materially enhance the risk of wrongdoing, had no knowledge or control over Welsh's independent files, and did not hold Welsh out as its agent to the plaintiffs.

Following a four-day trial where the applicant was awarded a $450,000 lump sum from the estate, the court determined the issue of costs.

The applicant sought full or substantial indemnity costs, arguing the estate trustees' conduct was unreasonable.

The court found the respondents' conduct was aggressive but not reprehensible, and since the applicant had withdrawn all offers to settle before trial, partial indemnity costs were appropriate.

The court fixed fees at $125,000 and reduced the claimed disbursements, noting the expert's account was excessive, resulting in a total costs award of $125,000 for fees and $35,387.20 for disbursements, plus HST.

The plaintiffs brought an urgent motion for the return of confidential information held by their former employee, the defendant, on her personal computer.

The defendant had been terminated and was sued for allegedly stealing over $400,000, while she counterclaimed for wrongful termination.

The parties agreed to have an independent IT expert copy and delete the confidential information, but disputed whether the expert should image the entire hard drive for preservation and whether the defendant should swear an affirmation confirming all confidential documents were produced.

The court ordered that the hard drive be imaged and preserved by an independent third party to prevent future disputes, and required the defendant to provide a sworn confirmation.

In a jury trial for medical negligence arising from hospital treatment, the parties disputed the proper wording of causation questions to be put to the jury and whether the jury should provide particulars explaining any finding of causation.

The plaintiffs argued the jury should be asked whether the defendants' breach 'caused or contributed to' the injury, relying on principles recognizing multiple causes in negligence.

The defendants argued the jury must be instructed using the Supreme Court of Canada’s 'but for' causation test articulated in Clements.

The court held the jury questions should follow the 'but for' formulation, finding the 'cause or contribute' wording risked confusion.

The court also ruled that if causation were found, the jury should be required to provide particulars of its reasoning due to the complexity of the medical evidence and multiple defendants.

A common law spouse brought an application under Part V of the Succession Law Reform Act seeking dependant support from the estate of her deceased partner after his will left the estate entirely to his daughters.

The court determined that the applicant was a dependant spouse within the meaning of s. 57 and that the deceased had not made adequate provision for her proper support under s. 58.

Applying the factors in s. 62, including the parties’ 20‑year cohabiting relationship, the applicant’s age, health issues, limited retirement income, and contributions to the deceased’s household, the court found that she required significant support.

Evidence also established that the deceased intended that his RRSP/RRIF funds would benefit the applicant.

The court concluded that a lump sum payment representing the approximate value of those funds would provide fair and adequate support while allowing the applicant financial independence.