David Holton Cutler

The plaintiffs sought to consolidate a 2023 action with a related 2021 action involving overlapping parties and issues arising from an “Estate Freeze” transaction.

The court found that both actions shared common questions of fact and arose from the same series of transactions, and that consolidation (or hearing the actions together) would avoid multiplicity of proceedings, inconsistent findings, and unnecessary costs.

The court ordered the actions to be heard together or one after the other, subject to the trial judge’s directions, and awarded costs to the plaintiffs.

The plaintiffs sought and were granted leave to issue certificates of pending litigation (CPLs) against two parcels of land transferred by the defendant Jazzar Holdings Inc. to individuals believed to be the principal’s parents for nominal consideration, while a lawsuit was pending.

The court found a high probability of success in the main action, evidence of intent to defeat or delay creditors, and that the balance of convenience favoured the plaintiffs.

The order was made on an ex parte basis due to urgency and risk of dissipation of assets.

This decision resolves a complex family law dispute involving property division, beneficial ownership, child and spousal support, and related trust and equalization claims.

The court found that the Quinn Property was always beneficially owned by the spouses, despite title transfers, and that Omar was the true owner of Cedar Woodwork Inc. The court ordered an unequal division of net family property due to Omar’s reckless depletion of assets and lack of disclosure, and set child and spousal support based on imputed income.

The judgment also addresses the enforceability of an alleged vendor take-back mortgage and the parties’ credibility.

The plaintiff sought leave to amend their Amended Statement of Claim to add particulars of the defendant minor's past antisocial behaviors, arguing relevance to the negligent supervision claim against the minor's parents.

The defendants opposed, arguing the proposed amendments constituted inadmissible similar fact evidence that would unduly complicate the litigation, prolong discovery, and invade the minor's privacy.

The court dismissed the motion, finding that the probative value of the proposed amendments was outweighed by the significant prejudice, complexity, and privacy concerns they would introduce, converting the trial into an inquiry about multiple past events rather than the specific altercation.

The appellant, Luigi Falsetto, appealed a lower court decision that rejected his claim for a purchase money resulting trust over a 50% interest in a property legally titled to his son and former daughter-in-law.

Luigi had provided half the purchase funds and borne half the expenses, intending the property as an investment.

The daughter-in-law was placed on title to avoid a merger of titles under the Planning Act.

The application judge found Luigi intended a gift, but the Court of Appeal found this an error of law and fact.

The Court held that the presumption of resulting trust applied, and the intention to avoid statutory consequences did not negate the actual intention to retain a beneficial interest, especially given the overwhelming evidence of an investment purpose and ongoing financial contributions.

The defendant brought a motion to compel the plaintiff to produce unredacted notes from her treating psychologist.

The plaintiff cross-moved for a limited sealing order and anonymization of the parties' names, arguing the notes contained highly personal information touching on her "biographical core." The court dismissed the defendant's motion, finding the redacted portions irrelevant to the LTD claim and potentially embarrassing/prejudicial.

The court granted the plaintiff's cross-motion, emphasizing the strong public interest in protecting confidential therapist-patient relationships and ensuring individuals with mental health issues can seek help without fear of public disclosure of their deepest personal information.

This appeal concerned the assessment of damages in a failed commercial real estate transaction.

The trial judge awarded the respondent (purchaser) damages for the increase in property value and 90% of all development expenses incurred since 2010.

The Court of Appeal allowed the appeal in part, affirming the award for increased property value and wasted expenses, but erred by including expenses incurred under a prior joint venture agreement that had been released.

The Court held that only expenses incurred after the 2013 Agreement of Purchase and Sale were recoverable.

The calculation of rental costs as development expenses was upheld, but the amount was to be limited to the period of the 2013 APS.

The 10% discount applied by the trial judge was upheld.

Luigi Falsetto sought a declaration that his former daughter-in-law, Paula Falsetto, held her interest in a property (415 Lisgar Street) in trust for him, based on a purchase money resulting trust.

The property was acquired jointly by Paula and Luigi's son, Albert, to avoid merger under the Planning Act.

Luigi paid the down payment and closing costs.

The court dismissed the application, finding that Luigi intended to gift the beneficial ownership to Paula to achieve the Planning Act purpose, thereby rebutting the presumption of a resulting trust.

A preliminary motion by Luigi to admit a late affidavit was also dismissed due to tangential relevance, non-compensable prejudice, and an unsatisfactory explanation for the delay.

The Appellants sought an order to vacate Certificates of Pending Litigation (CPLs) and a writ of seizure and sale registered against their properties, pending the determination of their appeals from a judgment and a CPL order.

They proposed paying the judgment amount into court as security to facilitate the sale of the properties to a third party.

The Respondent opposed, arguing that prior agreements required the full sale proceeds to be paid into court and that the Appellants had failed to disclose the sale agreement earlier.

The court found that the prior agreements contemplated a sale before the final determination of damages and that the Appellants' liability was now fixed by the judgment.

The motion was granted, allowing the CPLs and writ to be vacated upon the Appellants paying $1,750,000 into court as reasonable security, balancing the parties' interests.

The appellants, four corporate entities and their principal, appealed a Superior Court decision that confirmed an assessment officer's assessment of four accounts from their former solicitors, totaling $148,120.95.

The appellants argued the assessment officer exceeded jurisdiction, erred in findings, and showed reasonable apprehension of bias.

The Court of Appeal found no error in the reviewing judge's decision, which had applied a deferential standard of review.

The appeal was dismissed.

This appeal concerned the application of a limitation period to an arbitration agreement.

The parties, cousins and business partners, had a dispute over EOREI expenses that was to be referred to arbitration if negotiations failed.

The appellants (original respondents) argued the arbitration was time-barred, either by a 90-day agreement or the two-year limitation period from the Limitations Act, 2002, starting from the signing of the settlement agreement in September 2016.

The application judge found no 90-day agreement and held the two-year limitation period started when it became clear negotiations were impossible (January 31, 2018), making the arbitration timely.

The Court of Appeal upheld this decision, finding no palpable and overriding error in the application judge's interpretation of the arbitration clause as requiring an attempt at informal resolution before the limitation period began to run for arbitration.

The applicants sought an order referring a dispute to arbitration based on an arbitration clause in a release.

The respondents contended the application was time-barred, arguing for a 90-day deadline for arbitration or a two-year limitation period from the settlement date.

The court found no 90-day deadline and determined that the arbitration clause required parties to attempt informal resolution first.

The two-year limitation period under the Limitations Act, 2002, began when it became clear informal resolution was impossible, which was January 31, 2018.

As the arbitration request was made within two years of this date, it was not time-barred.

The respondents' motion to dismiss was dismissed, and the applicants' request for arbitration was granted.

The Plaintiff, Patrick Harbord, brought an action for negligence and breach of fiduciary duty against Pierre Dupont, a podiatrist.

The Defendants, Pierre Dupont and Dupont Chiropody Professional Corporation, did not attend trial, and their pleadings were struck.

The action against Dupont Chiropody Professional Corporation was dismissed.

The Court found Pierre Dupont negligent in his treatment of the Plaintiff's right foot, failing to meet the standard of care by recommending and performing unnecessary stent surgeries without first attempting conservative treatments and without providing properly informed consent.

The Plaintiff suffered a permanent, significant disability to his right foot.

The Court awarded the Plaintiff $140,000 in general non-pecuniary damages, $76,000 for loss of income/competitive advantage, $5,465.96 for a subrogated claim, $8,544.10 for repayment of surgical services, $420 for orthotic expenses, $1,260 for future orthotic expenses, and $80,795.91 in substantial indemnity costs, plus pre-judgment and post-judgment interest.

Phillips and Moulds sought to recover costs awarded against Petrelli Construction and Mr. Petrelli personally, bringing a motion for orders including striking Petrelli Construction's defence to counterclaim, compelling undertakings, and substituted service for an examination in aid of execution.

Petrelli Construction brought a cross-motion seeking a declaration that the costs order against Mr. Petrelli was unenforceable due to a consumer proposal in bankruptcy, or a referral to Bankruptcy Court, and dismissal of the counterclaim.

The court found the counterclaim discontinued under Rule 24.03, dismissing Phillips and Moulds' related requests.

The issue of the costs order's enforceability against Mr. Petrelli personally was referred to a judge in Bankruptcy Court.

Substituted service on Petrelli Construction for examination was granted, but denied for Mr. Petrelli personally.

This litigation arose from a failed real estate deal between a developer (applicant) and property owners (respondents).

The applicant sought summary judgment for unjust enrichment and breach of a 2013 agreement of purchase and sale (APS), while the respondents sought partial summary judgment on their counterclaim and dismissal of the applicant's claims.

The court dismissed the unjust enrichment claim, finding a valid contract constituted a juristic reason for the enrichment.

However, the court found the respondents breached the 2013 APS by refusing to close, rejecting their argument that a subsequent 2015 conditional APS nullified prior rights.

Damages for breach of contract and the respondents' counterclaim were deemed unsuitable for summary judgment due to incomplete records and interconnectedness.

The applicant's motion to amend its reply and defence to counterclaim was granted.

The court also strongly condemned the respondents' counsel's misconduct during a witness examination.

The plaintiff brought a motion to strike out the defendants' Statement of Defence and Counterclaim, or specific parts thereof, alleging contravention of Rule 25 of the Rules of Civil Procedure by pleading evidence (especially technical opinion evidence), improper references to legal counsel, and argument.

The defendants argued their pleading contained material facts relevant to their defence and limitations.

The court found that many paragraphs contained opinion evidence, irrelevant references to legal counsel, or argument, and ordered specific paragraphs and sentences struck out with leave to amend, but declined to strike the entire pleading.

The applicant sought to enforce a foreign Letter of Request for Judicial Assistance by requesting oral examination of a respondent's representative.

The request for oral examination was dismissed, though the respondent had previously agreed to produce documents.

The respondent sought full indemnity costs, arguing that as a stranger to the foreign litigation, it should not bear costs for successfully opposing the request.

The applicant argued for divided success and lower costs.

The court found the respondent wholly successful in opposing the oral examination and awarded full indemnity costs of $13,926.31.

This application concerned the enforcement of a Letter of Request for Judicial Assistance from a Florida court, seeking an oral examination of a representative from the National Gallery of Canada (NGC) regarding the ownership of Monet paintings by Frederic Bouin, who was involved in matrimonial litigation with the applicant.

The NGC had previously produced documents but opposed the oral examination.

The court applied a six-factor test for enforcing letters rogatory, finding that the applicant failed to demonstrate that the sought-after examination evidence was relevant, necessary, or not otherwise obtainable, as Mr. Bouin himself was available for examination in the US proceedings.

Consequently, the court declined to order the oral examination.

The defendants brought a motion seeking an order compelling the plaintiff to produce unredacted clinical notes and records of the plaintiff’s treating psychologist.

The plaintiff had produced the records with redactions relating to discussions about the litigation, mediation, and communications with counsel.

The court reviewed the unredacted notes and considered the governing principles for redaction under the Rules of Civil Procedure, including the requirement that relevant documents be produced in full subject to limited exceptions.

The court held that the redacted portions were irrelevant to the issues in the action and that disclosure would only embarrass or prejudice the plaintiff without assisting in resolving the dispute.

The motion to compel production was dismissed and costs were awarded to the plaintiff.

Following the striking of a statement of claim alleging conspiracy, defamation, misfeasance in public office, and related torts against numerous defendants, the court determined the quantum of costs payable on the successful pleadings motion.

Multiple defendant groups sought more than $205,000 in partial indemnity fees and over $20,000 in disbursements.

Applying Rule 57.01 of the Rules of Civil Procedure and the fairness principles articulated in Boucher, the court considered duplication of effort among separately represented defendants with similar interests.

The court concluded that substantial overlap existed between certain defendants’ legal work and therefore limited recovery to a single set of costs for those parties.

Reduced costs totalling $108,000 in fees plus $10,560 in disbursements were awarded, subject to HST.