David C. Moore

The Law Society of Ontario appealed a Divisional Court decision that remitted a costs decision back to the Law Society Tribunal Hearing Division.

The respondent, a lawyer, had successfully defended against professional misconduct charges and sought costs against the Law Society under Rule 25.01 for 'wasted costs'.

The Hearing Division denied costs, but the Divisional Court found the investigation was procedurally unfair and one-sided.

The Court of Appeal dismissed the Law Society's appeal, holding that while the Divisional Court erred in applying a procedural fairness framework, the Hearing Division erred in principle by taking a piecemeal approach to the Law Society's conduct and applying an overly rigid standard for wasted costs.

The matter was properly remitted for a holistic assessment of whether the Law Society's conduct caused wasted costs.

The applicants sought judicial review of an administrative directive redirecting frozen racing funds to the benefit of the Ontario racing industry rather than re-distributing them race by race.

The court held that the applicants had no remaining right or interest to challenge the directive because the earlier forfeiture order had finally disposed of the entire frozen account and any argument that some funds were from non-purse sources should have been raised in the original proceedings.

The court also held that judicial review is discretionary and declined relief because the application was perfected more than six years after commencement, the delay was excessive and inadequately explained, and prejudice was presumed.

The application was dismissed with agreed costs.

The appellant employer appealed a summary judgment decision awarding a former executive unpaid vacation pay, deferred bonuses, and the value of lost stock options.

The employer argued the motion judge erred in granting the relief, in finding that issue estoppel barred its just cause defence, and in determining the matter via summary judgment.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's assessment of the evidence or his conclusion that the just cause defence was barred by issue estoppel following the earlier dismissal of the employer's counterclaim under section 137.1 of the Courts of Justice Act.

This endorsement addresses the respondent's attempt to file a factum in an appeal that exceeded the prescribed length and included unauthorized schedules, leading to its refusal by court registry staff.

The judge, while affirming the registry's decision for non-compliance, granted the respondent leave to file the factum (after a minor reduction) due to the imminent appeal hearing.

To ensure procedural fairness, the appellant was also granted leave to file a reply factum of a specified length.

The judge also used the opportunity to advocate for a rule change to permit reply factums as of right in appeals.

The plaintiff, a former employee, brought a motion for summary judgment against the defendant for unpaid vacation, deferred bonuses, and stock options.

The court found that the plaintiff was not constructively dismissed but had retired.

However, the court granted summary judgment for the plaintiff on the claims for unused vacation pay, deferred bonuses, and the value of lost stock options, finding no genuine issue requiring a trial for these claims.

The defendant's counterclaim for just cause dismissal had been previously dismissed by the Court of Appeal, and the current court found issue estoppel applied to prevent its re-litigation as a defense.

The defendants moved to stay or dismiss the action, arguing the causes of action were subject to an arbitration agreement.

The plaintiff contended the arbitration clause was invalid and unenforceable due to contracting out of the Employment Standards Act, inclusion of a non-party (Catalyst), and unconscionability.

The court dismissed the motion, finding the arbitration agreement invalid because it illegally contracted out of the ESA's complaint investigation process, which is an employment standard.

The court also noted that separating the issues for Catalyst was not reasonable.

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

The Court of Appeal for Ontario issued a costs endorsement following a successful Rule 137.1 motion.

The appellant sought full indemnity costs of $273,111.22, which the respondent argued was excessive.

The court affirmed the statutory presumption under Rule 137.1(7) for full indemnity costs for a successful moving party, finding the award appropriate given the respondent's unsubstantiated $150 million counterclaim.

The court fixed costs at the amount claimed by the appellant.

The appellant, an employee, sued for wrongful dismissal.

The respondent counterclaimed for $150 million alleging breach of fiduciary duties.

The appellant moved to dismiss the counterclaim under s. 137.1 of the Courts of Justice Act (anti-SLAPP), to dismiss it under r. 21 as frivolous/vexatious, for leave to amend his Statement of Claim for deferred bonuses, and for summary judgment.

The motion judge dismissed the anti-SLAPP motion and the leave to amend, and deferred the other motions.

The Court of Appeal allowed the appeal, finding the motion judge erred in interpreting "arises from" too narrowly for the anti-SLAPP motion, and that the counterclaim lacked substantial merit and valid defences.

The Court also found the motion judge erred in deferring the r. 21 and summary judgment motions, and in refusing leave to amend the Statement of Claim, as the bonus claim was an additional head of damages, not a new cause of action.

The counterclaim was dismissed, the amendment allowed, and the summary judgment motion returned to the lower court.

The appellant lawyer was the subject of a Law Society discipline proceeding that was ultimately dismissed after 56 days of hearing.

He sought costs against the Law Society, which were denied by the Hearing Division and the Appeal Division.

On appeal to the Divisional Court, the court found that the Law Society's investigation was one-sided and procedurally unfair, and its positions on disclosure were unreasonable.

While the court upheld the finding that the proceeding was warranted at the outset, it set aside the decisions denying costs and remitted the matter to a new panel to determine whether the appellant is entitled to costs wasted by the Law Society's undue delay, negligence, or other default.

The plaintiff brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the defendant's counterclaim, arguing it was a SLAPP intended to silence his allegations of a poisoned workplace.

The plaintiff also moved to strike the counterclaim under the Rules of Civil Procedure, amend his statement of claim, and for summary judgment.

The court dismissed the anti-SLAPP motion, finding the plaintiff failed to show the counterclaim arose from his expressions.

The court also denied leave to amend the statement of claim as the proposed claim for deferred bonuses was statute-barred.

The remaining motions were deferred pursuant to the mandatory stay in s. 137.1(5) of the Courts of Justice Act.

The appellant, The Catalyst Capital Group Inc., appealed an order striking its claim for misfeasance in public office against Her Majesty the Queen in Right of Ontario (HMQ) without leave to amend.

Catalyst alleged HMQ improperly caused its removal as a participant in the Pan Am Athletes’ Village Project.

The Court of Appeal affirmed the motion judge's decision, finding that Catalyst's pleadings, despite being extensive, lacked sufficient material facts to plausibly support the required element of bad faith or unlawful conduct for the tort of misfeasance in public office.

The court reiterated that bald allegations of bad faith are insufficient without factual underpinning.

The Catalyst Parties brought actions for defamation, injurious falsehood, and conspiracy against various defendants, including media organizations, journalists, short sellers, and former borrowers, arising from the publication of a Wall Street Journal article and whistleblower complaints to the Ontario Securities Commission.

The defendants brought motions to dismiss the actions under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The Catalyst Parties also brought a motion to dismiss four discrete defamation claims in a counterclaim brought by the West Face Parties.

The court granted the defendants' motions, dismissing the Defamation Action and the Wolfpack Action, finding that the expressions related to matters of public interest and that the public interest in protecting the expressions outweighed the public interest in allowing the actions to proceed, particularly given the Catalyst Parties' history of aggressive litigation and ethically dubious investigative tactics.

The court dismissed the Catalyst Parties' motion regarding the counterclaim, holding that partial anti-SLAPP motions are not permitted and that the counterclaim had substantial merit.

The moving parties sought leave to appeal the February 12, 2021 decision of McEwen J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondents.

The moving parties sought leave to appeal the January 11, 2021 decision of Boswell J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties.

The Crown moved to strike out the plaintiff's Second Amended Claim for misfeasance in public office under Rule 21.01(1)(b) of the Rules of Civil Procedure.

The plaintiff alleged the Crown unlawfully directed Infrastructure Ontario to exclude it from participating in the financing of a public tendering project.

The court found that the Crown was entitled to make decisions adverse to the plaintiff's interests in a public tendering process, and the pleadings did not plausibly support a conclusion that the Crown acted for an improper purpose or in bad faith.

The claim was struck out without leave to amend.

The court also held that, alternatively, the plaintiff would have required leave to proceed under the Crown Liability and Proceedings Act, 2019.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.

The plaintiff, Catalyst Capital Group Inc., appealed a motion judge's decision to strike out several of its claims against Dundee Kilmer Developments Limited Partnership (DKD), Infrastructure Ontario (IO), and the Crown.

The claims arose from Catalyst's exclusion from financing the 2015 Pan/ParaPan American Games Athletes' Village project.

The Court of Appeal allowed the appeal in part, reinstating Catalyst's claims against DKD for breach of a funding term sheet, breach of fiduciary duty, and unjust enrichment/quantum meruit.

However, the court upheld the striking of unjust enrichment/quantum meruit claims against IO and the Crown, the public law duty claim against IO and the Crown, and the misrepresentation claim against the Crown, finding them either statute-barred, lacking direct benefit, or precluded by statutory immunity.

The plaintiffs sought to schedule a case conference for an assessment of damages.

The defendant was incarcerated in British Columbia and had been unreachable for several months.

The court issued a direction scheduling a telephone case conference, requesting the cooperation of the correctional institution to facilitate the defendant's participation, and noting that the conference would proceed whether the defendant participated or not.