David Fogel

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.

Three competing groups of law firms sought carriage of a proposed class action against LifeLabs following a massive data breach affecting 15 million patients.

The court evaluated the competing proposals based on factors including the experience of counsel, overall approach, and proposed fee arrangements.

Carriage was awarded to the McPhadden Group (the Carter action) because their proposal for a single national class action was preferred over parallel actions, and their proposed contingency fee arrangement was significantly more cost-effective for the class.

The plaintiffs in a class action sought leave to amend their claim to add Graham Turner as a defendant, alleging personal liability for knowing receipt of trust funds and professional negligence related to a tax shelter program.

Turner opposed, arguing the claims were statute-barred under the Limitations Act, asserting the plaintiffs could have discovered the material facts earlier through due diligence, including publicly available corporate records.

The court granted the plaintiffs' motion, finding that it could not make a specific finding of fact that the limitation period had expired, particularly regarding Turner's "control" of Escrowagent and his role as counsel, which were not readily discoverable.

Turner was permitted to raise the limitations defence at trial.

The appellants appealed a trial judgment finding them liable for damages due to abandoning a 10-year commercial lease.

The appeal focused on two grounds: whether Kevin O’Neill was personally liable as a tenant and whether outdoor storage was a permitted use of the premises, justifying abandonment.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the lease was unambiguous regarding Kevin O'Neill's personal liability and that the appellants failed to demonstrate an implied term for outdoor storage or a mutual mistake regarding permitted uses.

This is a costs endorsement on appeal from a Superior Court of Justice decision.

The Court of Appeal upheld the lower court judgment and ordered the appellant to pay costs to the respondent in the amount of $10,906.06, inclusive of taxes and disbursements.

The appellant appealed a judgment granting the respondent's application for enforcement of a 2013 settlement agreement concerning the sale of a veterinary clinic property.

The settlement agreement provided that following a five-year lease extension, the appellant would transfer title to the property to the respondent for $1,250,000 plus HST.

The appellant refused to close the sale in 2018, arguing that the application was procedurally improper, that the agreement was frustrated due to a significant increase in property value, and that specific performance was not an appropriate remedy.

The Court of Appeal dismissed the appeal and upheld the order for specific performance.

The plaintiffs moved for summary judgment to dismiss a counterclaim filed by the defendants in September 2018, arguing it was statute-barred under the Limitations Act, 2002.

The counterclaim arose from a 2011 business asset sale dispute, with the underlying facts occurring by late 2012.

The defendants contended there was a tolling agreement or that the claim only became "appropriate" after the final dismissal of their Alberta action in June 2018.

The court rejected both arguments, finding no clear tolling agreement and that the delay was a tactical decision, not legally appropriate.

The motion for summary judgment was granted, dismissing the counterclaim as time-barred.

The Applicant sought to enforce a settlement agreement for the sale of a property, which the Respondent refused to close due to an alleged increase in property value and a change of heart.

The court found the settlement agreement valid and enforceable, rejecting the Respondent's arguments of defective tendering, lack of readiness, and contractual frustration.

The court ordered the Respondent to close the sale within 30 days and encouraged parties to settle outstanding rent and costs.

The plaintiff sought to certify a class action alleging that document reviewers, hired as independent contractors by Deloitte and Procom, were actually employees entitled to benefits under the Employment Standards Act.

The court found some basis in fact for an employer-employee relationship with Deloitte but not with Procom or ATD (a predecessor).

The court certified three common issues against Deloitte but adjourned the motion, requiring the plaintiff to revise the class definition and replace the representative plaintiff due to reliability and disinterest concerns.

The appellant appealed a partial judgment of $152,314.44 awarded to the respondent franchisee.

The appellant argued the trial judge erred by refusing an adjournment to allow him to retain new counsel and by not allowing his counsel to get off the record before hearing a motion based on an unanswered Notice to Admit.

The appellant also claimed ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision to refuse the adjournment, noting the appellant chose not to attend the trial despite warnings.

The court also rejected the ineffective assistance claim, finding counsel acted faithfully and the issues arose from the appellant's failure to communicate.

The moving party sought a determination of how proceeds from a power of sale should be distributed between mortgagees.

The dispute concerned whether a first-ranking mortgagee could add a $230,000 settlement payment made to an execution creditor to the secured mortgage amount.

The court held that the payment could not be added because the mortgage had been assigned to another entity before the settlement was made, meaning the payer no longer held a mortgage interest to protect.

The court further rejected arguments based on resulting trust and equitable subrogation, emphasizing the Land Titles Act principles of certainty of title and the inability to enforce unregistered beneficial interests against third parties.

The settlement payment and related legal costs were therefore not recoverable as part of the mortgage debt.

On a summary judgment motion arising from a failed real estate transaction, the court held that the purchaser breached an unconditional agreement of purchase and sale by failing to close.

Alleged misrepresentations concerning the feasibility of underground parking did not raise a genuine issue requiring a trial because the evidence showed any assurances came from the purchaser's own agent, not the vendor.

The court held the $100,000 payment was a true deposit, not merely part payment of the purchase price, and was therefore forfeitable upon the purchaser's default.

Relief from forfeiture was denied because the deposit, amounting to 6.67% of the purchase price, was not unconscionable.

Summary judgment was granted and the brokerage was ordered to release the deposit to the vendor.

On three motions for security for costs brought by nine defendants, the court considered Rule 56.01(1)(a), (c), and (d) of the Rules of Civil Procedure.

Where multiple plaintiffs advanced both joint and several claims, the court applied the joint-versus-several claim analysis and held that security could not be ordered for joint claims advanced with an Ontario-resident plaintiff, but could be ordered for claims advanced only by non-resident plaintiffs.

The unpaid prior costs order did not assist the moving defendants because only parties holding the unpaid costs order could rely on that clause, and those parties were no longer defending the action.

The estate plaintiff, as a nominal plaintiff, was also ordered to post security because there was good reason to believe the estate had insufficient assets in Ontario.

Security was ordered in stages and costs of the motions were awarded to three groups of moving defendants.

The plaintiff brought a claim for unjust enrichment against the defendant, seeking $300,000 for renovations he allegedly performed on her properties during a purported 34-year cohabitation.

The defendant moved for summary judgment to dismiss the claim.

The court found that the plaintiff's evidence was contradictory, noting he had previously testified under oath at his criminal trial for harassing the defendant that their relationship was casual and he was married to someone else.

The court concluded there was no genuine issue requiring a trial, as the defendant provided overwhelming evidence that she solely owned and financed the properties, and the plaintiff was compensated for minor work with room and board.

The motion for summary judgment was granted and the action was dismissed.

Following a successful Rule 51.06(2) motion that resulted in partial judgment, the plaintiff sought costs and pre-judgment interest.

The court considered costs arising from both the motion and the adjournment of the scheduled trial after the defendants’ counsel was granted leave to withdraw.

Because the motion did not resolve all issues in the action, the court declined to assess the effect of prior settlement offers under Rule 49.

The court awarded the plaintiff partial indemnity costs for the motion and for wasted trial preparation caused by the adjournment.

Pre‑judgment interest was also granted pursuant to s. 6 of the Arthur Wishart Act (Franchise Disclosure).

A proposed purchaser under a second agreement of purchase and sale sought leave to intervene in litigation between the original purchaser and the vendor concerning the enforceability of an earlier agreement for the sale of condominium units.

The proposed intervenor also sought a mandatory order compelling completion of the second agreement, declaratory relief, and security for costs.

The court held the proposed intervenor would not assist in resolving the dispute between the original contracting parties and would merely duplicate the vendor’s position.

Any damages arising from failure to complete the second agreement would be compensable and properly pursued against the vendor in a separate proceeding.

The court dismissed the motion for intervenor status and related relief, refused the vendor’s request to withdraw its undertaking not to transfer title, and directed that the dispute proceed by expedited trial on the Commercial List.