David Outerbridge

In the receivership of the Stateview entities, Tarion Warranty Corporation brought a motion seeking declaratory relief on behalf of purchasers who had paid deposits for pre-construction homes.

Tarion argued that the deposits were subject to an express or constructive trust and sought a remedial constructive trust to elevate the purchasers' priority.

The court dismissed the motion, finding that the purchasers had contractually subordinated their interests to secured lenders.

While an express trust existed for contracts with early termination provisions, the funds were not segregated.

The court declined to impose a remedial constructive trust, as doing so would improperly upset the priority scheme under the Bankruptcy and Insolvency Act.

The plaintiff sought costs on a partial indemnity scale after successfully certifying her action as a class proceeding and defeating the defendant's motion for summary judgment.

The defendant argued that costs should be reduced or not awarded because the plaintiff failed to obtain a reverse summary judgment and the class definition was narrowed.

The court found the plaintiff was substantially successful and awarded costs of $300,000 plus HST and disbursements, slightly reduced from the claimed amount to reflect the lack of success on the reverse summary judgment request.

The defendant, Sun Life, brought a motion for summary judgment in a class proceeding regarding the calculation of annual indexing increases on long-term disability benefits.

The plaintiff argued for a reverse summary judgment.

The court found that the interpretation of the policy and the correct methodology to calculate the annual indexing of benefits where 'other income' is deducted raised a genuine issue requiring a trial.

The court dismissed both the defendant's motion for summary judgment and the plaintiff's request for a reverse summary judgment.

The plaintiff brought a motion to certify a class proceeding against Sun Life, alleging it incorrectly calculated long-term disability benefits by wrongfully deducting the inflation component from CPP and PSSA benefits.

Sun Life argued the plaintiff failed to meet the certification criteria.

The court found the pleadings disclosed a reasonable cause of action for breach of contract, though not for punitive damages.

The court amended the class definition to include a temporal limit based on the ultimate limitation period and certified the action, finding a class proceeding to be the preferable procedure.

Following the dismissal of the applicant's motion for an interim injunction, the respondent sought substantial indemnity costs.

The court found that the applicant had filed inaccurate and misleading evidence regarding its history of chargeable conciliations, which justified an enhanced costs award.

However, the court found the respondent's claimed amount of $86,845.95 to be disproportionate to the complexity of the matter.

The court awarded the respondent $45,000 in costs inclusive of disbursements and HST.

The applicant builder sought an interim injunction to prohibit the respondent statutory warranty corporation from conciliating delayed occupancy claims made by condominium purchasers.

The builder argued that the delays were caused by a municipal water supply issue and the COVID-19 pandemic, constituting an 'Unavoidable Delay', and that adverse conciliation decisions would irreparably harm its reputation.

The court dismissed the motion, finding no evidence of irreparable harm and concluding that the balance of convenience favoured allowing the statutory body to carry out its mandate to protect new home buyers.

The plaintiff insurance brokerage moved for partial summary judgment seeking a declaration that the defendant taxi management company held insurance premiums collected from its fleet members in trust for the insurer.

The court granted partial summary judgment regarding the first insurance contract (RSA Contract), finding a statutory trust arose under section 402 of the Insurance Act because the defendant acted as an agent in negotiating the insurance and received premium monies.

The court declined to grant partial summary judgment regarding the second insurance contract (FA Contract) due to factual complexities, but ordered the defendant to pay the collected premiums into court.

The plaintiff was wholly successful in a motion for summary judgment to enforce a settlement agreement regarding environmental pollution.

The plaintiff sought costs on a substantial indemnity basis, arguing the defendant overtly breached its settlement obligations and engaged in dilatory tactics.

The court found the defendant's conduct to be reprehensible, including attempting to secretly transfer assets and blocking remedial work.

The court awarded the plaintiff substantial indemnity costs in the amount of $212,532.99.

The defendant brought a motion requesting that its summary judgment motion be heard before the plaintiff's motion for certification of a class proceeding regarding the calculation of long-term disability benefits.

The plaintiff opposed, arguing the motions should be heard together or certification first.

The court applied the factors from Canon v. Funds for Canada Foundation and determined that hearing both motions at the same time would be the fairest and most efficient manner of proceeding, avoiding potential delays and multiple appeals.

The defendant's motion was dismissed.

The appellants, Ontario Lottery and Gaming Corporation and Ontario, appealed an arbitration decision that found they breached the Gaming Revenue Sharing and Financial Agreement (GRSFA) by ceasing to share certain non-gaming and complimentary revenues with the respondent, Ontario First Nations (2008) Limited Partnership.

The Superior Court of Justice dismissed the appeal, holding that the standard of review for commercial arbitrations remains reasonableness post-Vavilov.

The court found the arbitration panel's contractual interpretation was reasonable, firmly rooted in the agreement's text and surrounding circumstances, and that the honour of the Crown doctrine was correctly applied to the government-to-government agreement.

Following a seven-day trial regarding adverse possession and a right of way, the parties appeared to settle the formal judgment and address costs.

The court amended the judgment under Rule 59.06 to include an omitted declaration regarding a gate encroachment and adopted registerable Land Titles descriptions for the disputed lands.

On costs, the court found the plaintiff was the substantially successful party and had beaten its pre-trial offer to settle.

The court fixed costs at $500,000 payable to the plaintiff, reflecting the high quality of advocacy and the application of Rule 49.10.

Friday Harbour and its predecessors operated a marina on Lake Simcoe, which involved dredging a channel that submerged part of a right of way (Block C) and using the remaining 'Marina strip' exclusively since the 1960s.

The defendant, owner of Block C, argued the right of way was abandoned and counterclaimed for trespass.

The court found that Friday Harbour acquired ownership of the Marina strip by adverse possession, as its use was open, notorious, exclusive, and inconsistent with the titled owner's intended use.

However, the court also found that Friday Harbour had abandoned its right of way over the 'Western strip' of Block C, as it had relied on the impassability of the barrier between the strips to establish its adverse possession claim.

A non‑party developer sought a protective order restricting disclosure of its financial and project financing documents produced in litigation concerning a municipal RFP process.

The moving party argued the information was confidential and that disclosure to a competitor should be limited to counsel and experts and sealed from the public record.

Applying the test in Sierra Club of Canada v. Canada (Minister of Finance), the court held the evidence did not establish a real and substantial risk of harm or a sufficiently important commercial interest.

The court emphasized the open court principle and the public interest in transparency where allegations of political influence and misconduct in a municipal procurement process were raised.

The motion for a protective and sealing order was dismissed, though the court ordered reciprocal disclosure of equivalent financial documents relating to the plaintiff’s proposal.

The plaintiffs, representing a class of Barbados participating policyholders, brought an action against Manulife following the transfer of their policies to Life of Barbados (LOB) in 1996 and Manulife's subsequent demutualization in 1999.

The plaintiffs claimed that Manulife owed them a duty of care and a fiduciary duty to protect their rights to participate in the demutualization.

The court found that while it was reasonably foreseeable that Manulife would demutualize, no duty of care or fiduciary duty was owed to the plaintiffs because their rights as policyholders were lawfully extinguished by the transfer agreement, which was approved by regulators in Barbados and Canada.

The action was dismissed.