David S. Thompson

The defendant director brought a motion for summary judgment to dismiss the plaintiff's action against him in his personal capacity.

The plaintiff alleged the director should be personally liable for inducing breach of contract, deceit, and other torts, arguing the corporate veil should be pierced due to the director changing corporations mid-project for personal reasons.

The court dismissed the defendant's request to file a late supplementary affidavit.

The court also dismissed the motion for summary judgment, finding that a trial was required to determine the director's intent behind the corporate restructuring and billing practices, and whether his actions constituted a separate tort or improper conduct warranting piercing the corporate veil.

During a trial for nuisance, the defendants sought to introduce evidence of the plaintiff's alleged retaliatory conduct (e.g., loud music, smoke) to mitigate punitive damages.

The court ruled this evidence inadmissible, finding no causal connection between the plaintiff's post-nuisance conduct and the defendants' initial actionable conduct (building a dock) or their failure to rectify it.

The court emphasized that for such evidence to be relevant to punitive damages, it must have provoked the defendant's actionable conduct, and any defense based on the plaintiff's conduct influencing the failure to rectify must be pleaded.

The appellants appealed the dismissal of their action for construction deficiencies in their cottage.

The motion judge had granted summary judgment to the respondents on the basis that the appellants' claims were statute-barred under the Limitations Act, 2002, finding that the claims were discoverable in 2009 when the appellants first noticed problems with a sinking deck pier.

The Court of Appeal allowed the appeal, finding that the motion judge made material misapprehensions of the expert evidence and erred in his discoverability analysis.

The court held that the appellants did not have sufficient knowledge of the construction defects until receipt of the Terraprobe report in 2012, which identified that the stone retaining wall and cottage foundation had been negligently constructed on loose soil.

The court emphasized that knowledge of a problem is insufficient; the claimant must know that the loss is non-trivial and that litigation is an appropriate remedy.

The plaintiffs, current and former female police officers, sought to certify a class action against the Waterloo Regional Police Services Board and Association for systemic gender-based discrimination and sexual harassment.

The defendants challenged the court's jurisdiction, arguing that labour arbitrators and the Human Rights Tribunal of Ontario had exclusive jurisdiction.

The court found it lacked jurisdiction, as the claims arose from the employment relationship governed by a collective agreement and the Police Services Act, which provide a comprehensive dispute resolution scheme.

Furthermore, the court determined that even if it had jurisdiction, the claims did not disclose a viable cause of action under common law, as human rights legislation precludes independent civil actions for discrimination and sexual harassment.

The appellant appealed a motion judge's decision dismissing his battery claim as statute-barred under the Limitations Act, 2002.

The appellant was charged with assaulting a police officer and resisting arrest following an incident on June 1, 2014, and was acquitted on February 17, 2016.

He commenced an action on June 2, 2016, two years and one day after the alleged battery.

The central issue was whether the appellant discovered his potential battery claim within the meaning of section 5(1)(a)(iv) of the Limitations Act, 2002, which requires knowledge that a legal proceeding would be an appropriate means to seek remedy.

The majority held that the discoverability date was February 17, 2016 (the date of acquittal), not June 1, 2014, because the battery claim and negligent investigation claim were inextricably intertwined and it was reasonable for the appellant to await the outcome of the criminal proceedings before deciding to pursue the civil battery claim.

The appellant appealed a decision of the Health Professions Appeal and Review Board upholding the College of Nurses' refusal to annul her first unsuccessful attempt at the Canadian Registered Nurse Examination.

The appellant argued that her mental and emotional state, caused by her mother's death and medication side effects, prevented her from fully appreciating her inability to write the exam.

The Divisional Court dismissed the appeal, finding the Board's conclusion that the appellant could and should have assessed her circumstances before the examination was reasonable.

The applicant brought a motion for an interim payment out of court of funds held to the credit of the action following a shareholder dispute and oppression application.

The court previously ordered funds paid into court as security pending trial.

Relying on a recent Divisional Court decision upholding a similar prior interim payment, the court found the applicant was entitled to the funds under the formula established by the previous order.

The motion was granted and a payment of $392,712.50 was ordered.

Following the successful summary dismissal of the plaintiffs' action due to the expiry of the limitation period, the successful defendants sought costs of $15,000 each.

The plaintiffs argued for a reduced amount of $10,000 each, noting the lack of settlement offers and the principle of proportionality.

The court applied the factors under Rule 57 and the principles from Boucher and Davies, concluding that the defendants' requested amount was fair and reasonable.

The plaintiffs were ordered to pay $15,000 in costs to each defendant.

The defendants brought a motion to transfer the action from Hamilton to Walkerton, arguing that a fair trial could not be held in Hamilton due to the prominent philanthropic profile of the plaintiff's principal.

The court rejected this argument, finding no reasonable apprehension of bias among the Hamilton judiciary.

The court deferred deciding whether a transfer was desirable in the interests of justice under Rule 13.1.02(2)(b) until a pending motion to set aside a default judgment in the action is resolved.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action for negligent construction of a cottage and retaining wall, arguing the claim was statute-barred.

The plaintiffs experienced slope failure and retaining wall movement in 2009 and received an engineering report identifying the issue, but did not commence their action until 2013.

The court found that the plaintiffs knew the basic essential facts giving rise to a claim upon receiving the 2009 engineering report.

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

The defendants brought a motion under Rule 21.01(1) to dismiss the plaintiff's claim in battery as statute-barred.

The claim arose from an incident on June 1, 2014, where the plaintiff alleged excessive force by police during his arrest.

The plaintiff was acquitted of criminal charges on February 17, 2016, and issued a notice of action on June 2, 2016.

The court found that the tort of battery, being an intentional act with immediate harm, was discoverable on June 1, 2014.

The plaintiff's arguments that the limitation period should run from his acquittal, his release from custody, or due to his alleged incapacity were rejected.

The court distinguished battery from negligent investigation/malicious prosecution claims, where discoverability is tied to the termination of criminal proceedings.

Consequently, the battery claim was dismissed as statute-barred, having expired on June 1, 2016, while the negligent investigation claim was allowed to proceed.

The plaintiffs brought an omnibus motion for certification, settlement approval, class counsel fees, and representative plaintiff honoraria in a class action against 407 ETR.

The action alleged that 407 ETR unlawfully used the plate denial remedy against insolvent vehicle owners, contrary to the stay of proceedings under the Bankruptcy and Insolvency Act.

The court certified the action for settlement purposes and approved a settlement fund of $7,965,800, finding it fair, reasonable, and in the best interests of the class.

The court also approved class counsel's 30% contingency fee and a $10,000 honorarium for each of the three representative plaintiffs.

This endorsement addresses the costs of a motion where the applicants sought an advance payment for shares in a family business.

The applicants were largely successful in obtaining a substantial advance payment, significantly more than the respondents' offers to settle.

Despite some divided success on ancillary requests, the court found the applicants to have achieved substantial success on the primary issue.

The court fixed costs on a partial indemnity basis, awarding the applicants $60,000 for fees and $5,948.49 for disbursements, payable within 30 days, declining to defer the costs decision to the trial judge.

A proposed class action alleged that a charitable tax receipt program associated with private Christian school tuition resulted in participants being reassessed and penalized after the Canada Revenue Agency disallowed the tax credits.

The representative plaintiff moved on consent for certification for settlement purposes, approval of a settlement fund of up to $1.5 million, approval of class counsel’s contingency fee, and an honorarium.

The court reviewed the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and concluded that the criteria were met in the settlement context.

Applying established factors governing settlement approval, the court held the agreement was fair, reasonable, and in the best interests of the class.

The court also approved the requested contingency fee, disbursements, and the representative plaintiff honorarium.

A property developer sued a municipal fire department and its officials alleging negligence and misfeasance in public office after inspectors issued fire safety inspection orders requiring upgrades to fire alarm audibility levels in residential buildings.

The orders were based on an Office of the Fire Marshal guideline recommending a 60 dBA audibility level, though that standard was not prescribed by statute or regulation.

The plaintiff argued the inspectors exceeded their statutory authority under the Fire Protection and Prevention Act and enforced a non‑binding guideline as if it were law.

The court held the inspectors acted in good faith, relied on guidance from the Office of the Fire Marshal, and believed they had authority to address potential fire safety risks.

The plaintiff failed to prove deliberate unlawful conduct or knowledge of lack of authority required for misfeasance, and negligence was also not established.

The respondent perfected a construction lien and set the action down for trial within the two-year limitation period under s. 37(1) of the Construction Lien Act.

However, the respondent failed to file a defence to the appellant's counterclaim before setting the action down, contrary to Rule 48.01 of the Rules of Civil Procedure.

The appellant moved to discharge the lien, arguing the setting down was a nullity.

The Court of Appeal held that setting the action down while pleadings were open was a procedural irregularity curable by Rule 2.01.

Curing the irregularity did not have the effect of extending the strict two-year limitation period, as the action was factually set down within the required timeframe.

The appellant appealed a trial judgment awarding damages for past and future loss of income and earning capacity to the respondent following a motor vehicle accident.

The appellant argued the trial judge erred by making an award based on ownership income without proper financial statements, a business valuation, or a specific formula.

The appellant also challenged the trial judge's allowance of a per quod claim by the respondent's corporation.

The Court of Appeal dismissed the appeal, finding that the trial judge's assessment of loss of earning capacity was reasonable and owed deference.

The court also upheld the trial judge's factual finding of an employer-employee relationship supporting the per quod claim.

The plaintiff appealed an order vacating the setting down for trial of its construction lien action.

The motion judge had held that because the plaintiff had not delivered a defence to counterclaim when it set the action down, the pleadings were not closed, rendering the setting down invalid and causing the lien to expire under s. 37 of the Construction Lien Act.

The Divisional Court allowed the appeal, holding that the failure to include the defence to counterclaim in the trial record was an irregularity that could be cured under Rule 2.01 by granting leave to file an amended trial record, rather than a nullity that resulted in the expiry of the lien.

The defendants, representing 80% of the shareholders in a family business, brought a motion under section 248 of the Business Corporations Act seeking a compulsory buy-sell order to force the plaintiff, a 20% shareholder and widow of a deceased founder, to sell her shares.

The defendants argued that a deadlock existed because they did not want to share profits with a non-contributing shareholder.

The court dismissed the motion, finding that the defendants' desire to avoid sharing profits equally with the plaintiff did not constitute oppressive conduct under the Act.

The plaintiff's cross-motion for a forensic accounting was also dismissed.

In a franchise class action, the plaintiffs challenged the defendants' claims of solicitor-client privilege over certain documents and discovery refusals.

The court established seven general principles to govern the privilege claims, holding that requests for general legal information to understand rights are privileged, and that a lawyer's file compiled using professional skill is protected by work product privilege.

The court further held that pleading good faith in response to a bad faith claim does not impliedly waive privilege unless the party relies on legal advice as a material element of its defence.

The court outlined a process for the parties to apply these principles to the disputed documents and refusals ahead of a continued hearing.