David Fogel

The defendant Parks Canada brought a motion for summary judgment to dismiss an action based on the expiration of the two-year limitation period under section 4 of the Limitations Act, 2002.

The plaintiff foundation sought to avoid the limitation period by arguing that the action was for declaratory relief only (exempt under section 16(1)(a)) or that it was based on Aboriginal and treaty rights (exempt under sections 2(1)(e) and 2(1)(f)).

The court found that the declaratory relief sought had no practical effect and was merely an attempt to circumvent the limitation period.

The court also found that the plaintiff was not an Aboriginal person or acting as an agent for Aboriginal peoples, and that the action was fundamentally a breach of contract claim that was time-barred.

The motion was granted and the action was dismissed with costs awarded to the defendant.

The court considered whether the buyers were entitled to repudiate a real estate purchase agreement due to a storm sewer easement registered on title, and the resulting damages.

The court found the buyers were not entitled to repudiate, as the easement did not materially affect the use of the property, and awarded damages to the sellers, including the forfeited deposit and consequential losses.

This decision concerns a dispute arising from a series of real estate investments and construction projects between Darioush Nobahar (a builder) and Kambiz Heshmati (a real estate agent), along with their respective companies and associates.

The court addresses the parties' financial contributions, the breakdown of their business relationship, and the resulting claims and counterclaims for breach of contract and negligence.

The court finds that Nobahar abandoned the Deloraine project, dismisses his claims, and awards damages to the defendants on their counterclaim.

This endorsement addresses a motion in a certified class action regarding the scope of discovery.

The defendant, Western Union, sought to compel the representative plaintiff to answer two refused questions: (a) to produce facts and evidence from class members in the possession of class counsel, and (b) to advise whether plaintiffs’ counsel had spoken to any collectors or brokers.

The court found both questions improper, as they would effectively grant the defendant discovery of all class members and class counsel, contrary to the principles of class proceedings and privilege.

The motion was dismissed, and costs were awarded to the plaintiffs.

This appeal concerned a dispute between a mother and her daughter and son-in-law over beneficial ownership interests in two residential properties.

The trial judge found that the mother beneficially owned one property via a resulting trust and held a 35.6% interest in the second property.

The appellants argued the trial judge misapprehended evidence regarding intentions for the first property and that there was an apprehension of bias due to the immediate oral judgment for the second.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings on resulting trust and property interests, and found no reasonable apprehension of bias, though it noted the immediate oral decision was not best practice.

The appellants, a real estate agent and brokerage, appealed a trial judge's order requiring them to pay damages to their former clients, the respondents.

The trial judge found that the appellants negligently misrepresented the location of a proposed development, leading the respondents to enter an agreement of purchase and sale and forfeit a $120,000 deposit in a settlement with the developer.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the misrepresentation was negligent (not requiring expert evidence for a non-technical matter) and that the respondents' damages were caused by the misrepresentation.

The court rejected the appellants' arguments that the respondents should have completed the purchase or failed to mitigate their losses.

A dispute concerning beneficial ownership of two properties.

The plaintiff sought declarations of interest in the Strathmore Property, legally titled to her daughters, and the Goodison Property, legally titled to her daughter and son-in-law.

The court applied the presumption of resulting trust, finding the plaintiff to be the sole beneficial owner of the first property, as no value was given by the legal title holders.

For the second property, the court determined the plaintiff held a 35.6% interest through a purchase money resulting trust, based on her financial contributions, rejecting the argument that the funds were a gift.

The court ordered the transfer of the first property to the plaintiff and a monetary payment representing her share of the proceeds from the sale of the second property.

This appeal concerned a solicitor's negligence claim where the appellant alleged his former lawyers settled an estates dispute without his instructions, specifically regarding his ability to sue another lawyer involved in the estate.

The trial judge found that the settlement document did not preclude such a claim and that the lawyers had acted within instructions.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the settlement terms did not prevent subsequent litigation against the third-party lawyer and that the limitation period argument was not a bar to commencing an action.

The court emphasized that the objective intention of the parties, not a default "standard form release," determines the scope of settlement terms.

The appellants appealed their convictions for offences under the Fish and Wildlife Conservation Act and Fishing Licensing Regulation, specifically concerning the interpretation of an exemption related to buying baitfish for commercial purposes without a license.

The Court of Appeal upheld the lower court's decision, finding that the exemption in s. 32(1) of the Regulation applies only to the general prohibition in s. 51(1) of the FWCA, not to the specific commercial baitfish prohibition in s. 31.3(1)(b) of the Regulation.

The court also rejected a due diligence/mistake of fact defence, reiterating that misinterpretation of law is not a valid defence.

The applicants purchased a boat from the respondent, Roman Korytski, which was later discovered to be stolen.

The respondent Aviva Canada Inc. claimed ownership by right of salvage.

The applicants sought compensation from Korytski for breach of contract (nemo dat principle) and reimbursement of expenses from Aviva for the boat's upkeep.

The court found Korytski liable for the original purchase price of $33,200, rejecting the claim for current market value due to lack of expert evidence.

The claim against Aviva for expenses was dismissed, as the applicants had possession and use of the boat during the period the expenses were incurred.

The plaintiff, Stephan Wiener, brought a claim for solicitor's negligence against his former lawyer, Paul Strickland, and his firm, Siskinds LLP.

The claim arose from a mediation where a settlement document was prepared.

The plaintiff alleged that Mr. Strickland bound him to the settlement without his instructions, specifically concerning his ability to sue a third-party lawyer (Douglas Gunn) and the expiry of a limitation period for such a claim.

The court found that the settlement document, which referred to "standard releases," did not prevent the plaintiff from suing Mr. Gunn.

The court also rejected the argument that the limitation period had expired, noting that the defendant was not retained to advise on a claim against Mr. Gunn and that a limitation period is a defence, not a bar to launching an action.

The plaintiff's claim was dismissed.

The defendants brought a motion to enforce Minutes of Settlement, alleging the plaintiff failed to produce certain financial information and was responsible for specific payments.

They also wrongly accused the plaintiff of theft.

The plaintiff, through substantial investigation, proved that nothing was owing and no documents were missing.

The court found the defendants' claims unfounded and awarded the plaintiff costs on a substantial indemnity scale, totaling $59,000.00, payable from funds held in trust by the defendants' counsel.

The decision emphasized that the costs award compensates the successful party without exceeding the unsuccessful party's reasonable expectations, as per Rule 57.01(1)(0.a) and (0.b) of the Rules of Civil Procedure.

The defendants brought a motion to enforce Minutes of Settlement, alleging the plaintiff failed to provide financial information and was responsible for certain payments related to a Florida property.

The plaintiff argued that she had provided all documents and that the financial claims pertained to a subsequent period of employment not covered by the Minutes.

The court found no evidence of missing documents and determined that the financial obligations under the Minutes only covered pre-settlement expenses, which were below the agreed-upon ceiling.

The motion was dismissed, and the court declined to order the release of trust funds held for potential future tax liabilities.

The plaintiffs in a class action regarding a charitable donation tax shelter brought a motion to compel the defendants' former legal counsel to produce their client files and answer questions refused during discovery.

The plaintiffs argued that solicitor-client privilege was vitiated by the fraud exception, or alternatively, waived through disclosure of a tax opinion and sharing of information with third-party consultants.

The court dismissed the motion, holding that the fraud exception applies only to criminal conduct, not civil fraud.

The court further held that disclosure of the stand-alone tax opinion did not waive privilege over the entire file, and that communications shared with third-party consultants were protected by common interest privilege and the functional extension of solicitor-client privilege.

The plaintiff brought a motion for leave to amend her Amended Statement of Claim in a solicitor's negligence action, seeking to add allegations of litigation misconduct by the defendants' counsel.

The proposed amendments related to the handling and delivery of client files.

The court found the motion premature due to its overlap with a "Label Motion" and ongoing judicial case management concerning the same alleged misconduct.

The court adjourned the pleadings motion to a case conference to clarify the status of the related motions and case management, reserving costs.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

The plaintiffs brought a Rule 21 motion to strike portions of the defendants' amended statement of defence and counterclaim, which relied on the doctrine of ex turpi causa.

The defendants alleged the loan funds advanced by the plaintiffs were obtained through illegal means.

The court struck the counterclaim without leave to amend, noting ex turpi causa operates only as a defence, not a cause of action.

The court also struck the relevant portion of the statement of defence, finding no pleaded nexus between the alleged illegal schemes and the loan transactions, but granted leave to amend.

This appeal was adjourned to facilitate a settlement between the parties.

A settlement was reached, and the parties agreed that the appeal should be allowed and the original judgment varied in accordance with a draft order.

The Court of Appeal was satisfied that the terms of the proposed order reflected the correct disposition of the appeal on the merits, and consequently, the appeal was allowed as per the filed draft order.

The plaintiffs (purchasers in a real estate transaction) brought a motion to stay or dismiss a separate action commenced by the defendant real estate brokerage for unpaid commission, arguing it should have been brought as a counterclaim and was an abuse of process.

The defendant brokerage brought a cross-motion to transfer the plaintiffs' action from Toronto to Oshawa, where multiple related actions were already pending.

The court dismissed the plaintiffs' motion, finding it was not an abuse of process for the brokerage to commence a separate action given its dual role as plaintiff and defendant with separate counsel.

The court granted the cross-motion to transfer the Toronto action to Oshawa, noting the property, witnesses, and related proceedings were all located in the Oshawa area.

The plaintiffs brought motions to compel the examination of a defendant on behalf of a corporate defendant and for further and better affidavits of documents from several defendants.

The parties agreed to dismiss the examination motion and portions of the production motion without prejudice.

The court ordered one defendant to produce certain financial documents relevant to personal enrichment and an itemized Schedule B list, but dismissed the remaining requests for further documents and better email descriptors, finding insufficient evidence of missing documents and that the current descriptors were proportionate.