David Grant Boghosian

In contentious estate litigation, the applicant brought a broad motion seeking numerous procedural and substantive orders relating to the administration of an estate, production of records, and interim support.

The court found the litigation had become highly acrimonious and expensive, warranting active case management and intervention to regularize the proceedings.

Orders were made requiring the respondents to pass accounts, appointing an estate trustee during litigation, compelling production of medical and solicitor records relevant to testamentary capacity, permitting amendment of the application to determine the deceased’s last will, and directing an organized exchange of productions.

The court also granted the applicant an interim funding order from the estate for legal expenses.

Contempt motions brought by both sides were dismissed.

Following a motion in which the defendants sought to dismiss a negligence action against a firefighter as statute‑barred and for failing to disclose a reasonable cause of action, the court dismissed the defendants’ motion and granted the plaintiffs leave to amend their statement of claim.

The plaintiffs subsequently sought costs on a partial indemnity basis.

The defendants argued the plaintiffs should not recover costs because they could have avoided expense by not opposing the motion.

The court rejected this submission, holding that the plaintiffs were entitled to resist the motion and defend their right to challenge the statutory defence.

Costs were awarded to the plaintiffs with reductions for excessive disbursements and to align with reasonable expectations of the unsuccessful party.

In a personal injury action arising from a bicycle and motor vehicle collision allegedly caused in part by unlit streetlights on a boundary bridge, a municipal defendant appealed summary judgment dismissing its crossclaim and the action against a co-defendant utility contractor.

The appeal court held that the servicing agreement and the evidence about responsibility for identifying and maintaining boundary-road streetlights were ambiguous and contradictory.

The motion judge erred by treating the parties' common understanding as determinative despite live disputes over contractual allocation of responsibility.

The claims against the contractor were restored for trial.

During a civil jury trial, the court addressed a dispute between counsel regarding the form of jury questions on damages.

The plaintiff argued that the jury should only be asked about general, aggravated, and punitive damages, while the defendants submitted that the questions should reflect the damages discussed in the charge, including general, nominal, and contemptuous damages.

The court held that there was no prejudice to the plaintiff in directing the jury to consider the specific types of damages addressed in the charge.

The jury questions would therefore separately reference general, nominal, and contemptuous damages to align with the jury instructions.

During a jury trial in a defamation action arising from statements published by municipal officials, the plaintiff sought a jury instruction permitting an adverse inference from the defendants’ failure to call two municipal officials as witnesses.

The court reviewed the principles governing adverse inference where a party fails to call a witness, including the requirement that the witness be under the exclusive control of the party and that the evidence not be otherwise available.

The court found the witnesses were equally available to both parties and were not under the defendants’ exclusive control.

As a result, the circumstances did not justify the rare step of instructing the jury that an adverse inference could be drawn.

During a defamation trial involving a municipal councillor and the mayor along with other councillors, the plaintiff sought to introduce a report by the municipal Integrity Commissioner into evidence.

The defendants objected to its admissibility.

The court ruled the report inadmissible, finding that it did not meet the necessity and reliability criteria for the principled exception to hearsay.

The court noted that under the Municipal Act, the Integrity Commissioner is not a compellable witness, meaning the defendants would be unable to cross-examine him.

The court concluded that admitting the report would be highly prejudicial and could lead the jury to afford the untested opinion undue weight.

In a defamation action brought by a municipal councillor concerning a statement published by town council and later republished by a newspaper, the plaintiff sought to introduce similar fact evidence relating to a separate defamation action previously commenced and later discontinued by one of the defendants.

The plaintiff argued that the earlier litigation had been characterized as SLAPP litigation and was relevant to establish malice.

The court held that the prior action had minimal probative value in determining whether the impugned statement was defamatory or whether available defences applied.

The court further concluded that admitting the evidence risked sidetracking the jury trial into collateral issues unrelated to the pleadings.

The motion to admit the similar fact evidence was therefore dismissed.

A defendant electrical contractor brought a motion for summary judgment seeking dismissal of the action and a cross-claim arising from an accident allegedly caused by non-functioning streetlights on a boundary bridge between two municipalities.

The responding municipality argued the contractor should remain in the action pending trial because the municipalities’ respective jurisdiction over the streetlights might still be determined.

The court held that both the municipality and the contractor mutually understood under their Streetlighting Services Agreement that the bridge streetlights were outside the municipality’s jurisdiction.

Because the cross-claim was contractual and there was no possible breach under the agreement as interpreted by the parties’ mutual intention, there was no viable claim against the contractor.

Summary judgment dismissing the action and cross‑claim against the contractor was granted.

The plaintiff was involved in a motor vehicle accident and sued the driver who rear-ended her, as well as the municipality and its bus driver.

Following discoveries, the rear-ending driver admitted liability and the parties agreed to dismiss the action against the municipality and its driver without costs.

Two years later, the municipality brought a motion seeking costs against the co-defendant and the plaintiff.

The court dismissed the municipality's motion, finding it was reasonable for the co-defendant to wait until after discoveries to admit full liability.

The court awarded costs to the plaintiff for having to respond to the unnecessary motion.

The plaintiffs moved to amend their statement of claim following a motor vehicle accident to add a municipality as a defendant and to properly name the existing defendant as a person under disability represented by a litigation guardian.

The municipality opposed the amendment on the basis that the limitation period under the Limitations Act, 2002 had expired.

The plaintiffs relied on the discoverability principle, arguing that they did not learn the material facts supporting a claim against the municipality until they obtained police officers’ notes describing hazardous icy road conditions.

The court held that the limitation period began when the plaintiffs ought to have obtained the notes through the exercise of reasonable diligence.

Because the plaintiffs failed to follow up on a request for the notes for several years, the discoverability principle did not extend the limitation period.

The applicant municipalities sought a declaration that their insurers had a duty to indemnify them for damages sought in two underlying actions relating to the expropriation of lands for a Toyota manufacturing plant.

The insurers argued the application was premature as the underlying actions involved substantial disputed facts and potential coverage exclusions, including whether the municipalities gained a personal profit or advantage, or if the claims were for restitution or statutory compensation.

The court dismissed the application, holding that unlike the duty to defend, the duty to indemnify must generally be determined after trial based on findings of fact, and the current record contained too many disputed facts to resolve the coverage issues prematurely.

The defendant municipality brought a motion for costs under Rule 37.09, arguing that the plaintiff had abandoned its motion for an interim injunction regarding a collapsed slope.

The court found that the plaintiff's motion was not abandoned, but rather became moot because the municipality issued orders requiring the plaintiff to remediate the slope at its own expense.

The court dismissed the municipality's motion for costs, noting that the underlying issues of causation and responsibility remained to be determined at trial.

Costs of the motion were awarded to the plaintiff.

The representative plaintiff brought a motion for approval of a settlement agreement in a class action arising from the loss of an unencrypted USB key containing the personal information of over 83,000 individuals who received H1N1 vaccines.

The proposed settlement established a claims process for class members who suffered economic harm, with a claim period ending in August 2016, but provided no direct cash payments for anxiety or distress.

Despite objections from some class members regarding the lack of immediate compensation and the length of the claims period, the court approved the settlement as fair and reasonable.

The court noted that the risk of identity theft had largely dissipated over time, making the prospects of success at trial poor, and also approved class counsel fees of $500,000 plus a percentage of future claims.

The appellants appealed the dismissal of their action for damages against the respondent municipality.

The appellant and a friend had driven down a dead-end rural road, got stuck on a hydro right-of-way, and abandoned their vehicle in extreme cold, resulting in severe frostbite injuries.

The appellants argued the municipality breached its standard of care by failing to post 'No Exit' and checkerboard signs.

The Court of Appeal upheld the trial judge's findings that the road conditions were not potentially dangerous to reasonable drivers and that the appellants would have ignored the signs regardless.

The appeal was dismissed.

The Litigation Administrator in a class action sought court approval for its accounts totaling $65,455.25.

The defendants objected, arguing the fees significantly exceeded the initial estimate of $21,500.00.

The court applied the principles for passing a receiver's accounts and found the work was necessary, well done, and the hourly rates were known in advance.

The court approved the accounts up to the end of December 2011, noting that changes in the notice process increased the complexity and expense of the administrator's work.

The appellants appealed a summary judgment decision awarding the respondent damages for wrongful dismissal, specifically challenging the award of a bonus during the 19-month notice period.

The appellants argued the respondent was ineligible for a bonus because he was not actively employed on December 31st of the claim year.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the active employment precondition was not incorporated into the employment contract or brought to the respondent's attention.

The court also upheld the motion judge's calculation of the bonus and her conclusion that there was no genuine issue requiring a trial.

The appellant appealed the dismissal of its motion for an adjournment and the dismissal of its action against the respondent municipality.

The appellant argued the motion judge erred by not granting the adjournment to allow the appellant's principal to sell his home to fund legal counsel.

The Court of Appeal found no palpable and overriding error, noting the appellant had already received two adjournments totalling a year and had failed to secure counsel.

The Court also declined to admit fresh evidence regarding the subsequent sale of the home, finding it did not meet the criteria for admission.

The appeal was dismissed.

The appellants appealed a trial judgment finding them negligent for failing to provide a required railing, which was determined to be a proximate cause of the respondent's accident.

The trial judge also allocated 33.3% contributory negligence to the respondent.

The Court of Appeal dismissed the appeal, holding that the trial judge's conclusions on causation and contributory negligence were fully supported by the evidence and within his discretion.

The appellant was wrongfully convicted of robbery after a police investigation.

He was later acquitted and sued the police for negligent investigation.

The Supreme Court of Canada recognized the tort of negligent investigation, holding that police owe a duty of care to suspects under investigation.

However, applying the standard of a reasonable police officer in similar circumstances, the Court found that the police conduct in this case, while flawed, did not breach the standard of care.

The appeal and cross-appeal were dismissed.

The appellants appealed a trial judgment, arguing the trial judge erred in her factual findings and misdirected herself on the legal principles regarding confidential information by focusing on ownership.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual and credibility findings.

The Court also held that the lack of proof of ownership of the confidential information was highly relevant, as there was no evidence the appellants had the legal right to compel its return or were authorized agents of the owner.