David Holton Cutler

The plaintiff sued for damages arising from the defendants' refusal to close a real estate transaction for commercial property intended for condominium development.

Liability for breach of contract was previously determined by summary judgment.

At trial to quantify damages, the plaintiff sought disgorgement of profits or, alternatively, expectation damages including reimbursement of development expenses.

The court declined to award gain-based restitution but awarded expectation damages to make the plaintiff whole, comprising the $323,000 difference between the purchase price and the land's value on the closing date, plus 90% of the plaintiff's out-of-pocket development expenses ($1,062,901).

The defendants' counterclaim was allowed in part for admitted debts and rent up to the date of breach.

The plaintiff sought default judgment against a chiropodist who performed allegedly unnecessary and harmful stent insertion surgery on both of his feet.

The defendant failed to deliver a statement of defence.

The court granted default judgment, finding the pleaded facts established negligence and lack of informed consent.

The court awarded $150,000 in general damages, $81,624 for past loss of income, $180,000 for future loss of income, plus prejudgment interest and costs.

The defendants brought a motion to amend their statement of defence to include a counterclaim in a simplified procedure action.

The plaintiffs consented to the amendment but requested further oral discovery to question the defendants on the counterclaim and newly produced documents, specifically a Code of Conduct.

The court granted the amendment and allowed the plaintiffs an additional 45 minutes of discovery, finding that the Code of Conduct should have been produced earlier and would have been a legitimate area of inquiry.

Costs of the motion were awarded to the plaintiffs.

The plaintiffs brought a motion for partial summary judgment on liability in a solicitor's negligence action against their former lawyer and his firm.

The plaintiffs alleged the lawyer failed to prepare a promissory note to support a General Security Agreement, weakening their bargaining position with a debtor.

The court found that while the lawyer breached the standard of care by acting in a conflict of interest and failing to prepare the note, the plaintiffs suffered no compensable loss as the debt was recognized, secured, and largely repaid.

The court dismissed the plaintiffs' motion and granted a 'boomerang' summary judgment dismissing the action entirely.

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 defendant brought a motion to consolidate a civil action with a family court application.

The civil action involved a dispute over whether a $250,000 transfer of funds from the plaintiff to the defendant was a loan or a gift, while the family court application involved the enforcement of a separation agreement and equalization of net family property.

The court applied the factors for consolidation under Rule 6.01 and found that while there were common questions of fact, the balance of convenience favored allowing the civil action to proceed to a summary trial independently.

The motion to consolidate was dismissed.

The plaintiff moved to strike the defendant's jury notice in a motor vehicle accident action due to trial delays caused by the COVID-19 pandemic.

The action had been set down for trial in August 2018 and was scheduled for a four-week jury trial in March 2021.

The court granted the motion, finding that the defendant's prima facie entitlement to a jury trial must yield to the overriding interests of justice, which include the timely resolution of civil disputes.

Given the suspension of civil jury trials in Ottawa and the capacity for in-court non-jury matters, justice would be better served by discharging the jury.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for occupational therapy, an optometry assessment, and a gym membership.

The respondent insurer denied the benefits.

The Tribunal found that the applicant had proven on a balance of probabilities that the claimed treatment plans and assessments were reasonable and necessary to treat her concussion and psychological symptoms.

The Tribunal placed less weight on the insurer's examination reports.

The applicant was awarded the claimed benefits and interest, but her claim for an award was dismissed.

The respondent's request for costs was also dismissed.

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.

The defendants brought a motion to exclude the co-plaintiffs from each other's examination for discovery in an action regarding a denied insurance claim for residential theft.

The defendants argued that credibility was a central issue, relying on the test in Lazar.

The court dismissed the motion, finding that the central issue was whether the insurance broker met the standard of care, not the plaintiffs' credibility.

Furthermore, the court held that the agreed-upon discovery plan contained an implied term that the plaintiffs could attend each other's discoveries.

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 obtained a net jury verdict of $5,760.00 following a four-week trial for a motor vehicle accident.

The defendants had made three offers to settle, the last being $250,000.00 plus costs, which was compliant with Rule 49.10.

The court considered the offers to settle and the factors under Rule 57.01.

The court ordered the plaintiff to pay the defendants $70,000.00 in partial indemnity costs, noting that the plaintiff would have been better off accepting any of the defendants' offers.

Following a jury verdict in a motor vehicle accident trial, the court determined the application of statutory deductibles and collateral benefits to the damages awarded.

The jury awarded $42,250 for general damages and $76,121 for past loss of income.

Applying binding appellate authority, the court applied the 2015 statutory deductible to the general damages, reducing the net award to $4,266.67, plus pre-judgment interest.

The court also deducted collateral benefits, including accident benefits and long-term disability settlements, from the past loss of income award, reducing it to zero.

The plaintiff was awarded a total judgment of $5,760.

On a threshold motion under s. 267.5 of the Insurance Act, the court held that the plaintiff established permanent serious impairment of an important physical, mental or psychological function arising from a rear-end motor vehicle collision.

The evidence supported a finding that a whiplash injury led to permanent debilitating chronic pain requiring regular injections and strong medication, notwithstanding pre-existing pain, anxiety, and depression.

The court also held that the medical report complied in substance with s. 4.3(4) of Regulation 461/96 even though it did not recite the regulation's exact wording.

The plaintiff was therefore entitled to recover non-pecuniary damages subject to the statutory deductible and the jury verdict.

The plaintiff in a wrongful dismissal action moved to strike references to a separation package offer from the defendant's statement of defence.

The defendant argued the offer was made with prejudice as it was the primary termination letter and not labelled 'without prejudice'.

The court found the offer was made without prejudice to 'buy peace', as it included an enhanced severance contingent on a release, contained a confidentiality clause, and was made to avoid litigation.

The court ordered the references struck from the statement of defence as irrelevant and potentially prejudicial.

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 defendant brought a motion to set aside a default judgment obtained against him for damages related to a marijuana grow operation on the plaintiff's property.

The court applied the five-factor test for setting aside default judgments and found that the defendant failed to act promptly, provided no plausible excuse for his default, and failed to present an arguable defence on the merits.

The motion was dismissed with costs awarded to the plaintiff.

The plaintiffs were successful in a Rule 26 motion to amend their pleadings and sought costs.

The defendants argued the costs should be reduced due to efforts expended on an anticipated summary judgment motion based on the prior pleadings, which they claimed were costs thrown away.

The court declined to discount the costs on this basis, noting the summary judgment motion might not have succeeded and some preparation might still be useful.

The court fixed the plaintiffs' costs at $14,212.82 on a partial recovery basis.

The plaintiffs brought a motion under Rule 26 of the Rules of Civil Procedure for leave to deliver a fresh statement of claim in a negligence action against a fitness club and associated entities.

The proposed amendments sought to add a claim for negligent misrepresentation regarding insurance coverage and to pierce the corporate veil, based on information obtained during discoveries.

The defendants opposed the motion, arguing the amendments pleaded evidence, withdrew admissions, raised untenable claims, were statute-barred, and constituted an abuse of process.

The court rejected the defendants' arguments, finding the amendments pleaded material facts, did not cause irreparable disadvantage, and raised triable issues discovered within the limitation period.

The motion was granted.