David Sydney Steinberg

The appellant tripped and fell on a hole in an asphalt walkway on the grounds of a public school during the summer.

A jury found that the respondent school board had not breached its duty under section 3 of the Occupiers' Liability Act and that the appellant was responsible for her injuries.

The appellant appealed, arguing the jury's verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding there was a basis on the record for the jury to conclude the respondent had taken reasonable care, given its system of maintenance and the reduced use of the school yard during the summer.

A former bank employee brought an application seeking payment of allegedly outstanding bonuses under a Restricted Share Unit plan following his resignation.

The employer denied liability on the basis that the plan provided for forfeiture of unvested units upon resignation.

The applicant argued that the forfeiture provision operated as an unreasonable restraint of trade and was unconscionable.

The court held that the evidentiary record was insufficient to determine whether the provision constituted an enforceable restraint of trade and concluded that the issues raised involved material factual disputes.

The court determined that the matter was not properly brought by way of application and directed that submissions be made regarding continuation of the proceeding as a trial.

Investors brought an action against their accountant and a lawyer alleging breach of fiduciary duty and breach of contract arising from losses on second mortgage investments after mortgagor defaults.

The moving defendants sought summary judgment arguing there was no causal link between any alleged breach and the losses, particularly because the investors obtained independent legal advice and increased their investments thereafter.

The court held that equitable compensation for breach of fiduciary duty requires a causal connection between the breach and the loss.

The evidence demonstrated the losses resulted from the plaintiffs’ own investment decisions and not from any alleged non‑disclosure.

The court also found that a later agreement to renew the mortgage was conditional upon refinancing of a first mortgage and therefore unenforceable when that condition precedent failed.

The appellant appealed a carriage order made by the Superior Court of Justice in a class proceeding.

The Court of Appeal concluded that the carriage order is an interlocutory order, meaning the court lacked jurisdiction to hear the appeal.

The appeal was dismissed, with the court noting that the proper route is to the Divisional Court by way of leave to appeal.

The appellants, a law firm and its principal lawyer, appealed a motion judge's decision denying them a fee premium and reimbursement of disbursements for their representation of a catastrophically injured client under a disability.

During the appeal, the parties reached a settlement for a reduced fee premium and full disbursements.

The Court of Appeal approved the settlement, finding it was in the best interests of the person under a disability and fairly compensated the lawyers for their services and risk.

Following release of reasons in a prior motion, the court invited submissions on costs.

The plaintiff and defendants consented that the costs of the motion would be assessed by the trial judge in the cause rather than determined immediately.

Two non-parties involved in the motion waived any entitlement to costs.

The court ordered that no costs were payable to those non-parties.

The defendants sought relief from a non-disclosure agreement and production of documents and financial statements to support a pleaded defence in a debt action.

The responding party and non-parties resisted production on relevance grounds and requested confidentiality protection if disclosure were ordered.

The court held the pleaded defence raised issues making the requested materials relevant and ordered production.

Applying the Sierra Club framework, the court granted a sealing order over the NDA documents and financial statements, limited to preserve openness and subject to reconsideration by the trial judge.

The appellant suffered severe physical and psychological injuries, including a leg amputation and clinical depression, in a motor vehicle accident.

He sought enhanced statutory accident benefits, arguing he was catastrophically impaired.

The trial judge held that physical and psychological impairments could not be combined under section 2(1.1)(f) of the Statutory Accident Benefits Schedule to meet the 55 per cent whole person impairment threshold.

The Court of Appeal reversed this decision, finding that the language of the Schedule, the purpose of the American Medical Association's Guides, and the goals of the statutory scheme permit the combination of physical and psychiatric impairments to determine catastrophic impairment.

The purchaser bought a house and subsequently discovered serious latent structural and plumbing defects.

The vendors had completed a Seller Property Information Sheet (SPIS) indicating no ongoing problems, which the real estate agent, acting for both parties, passed on without verification.

The purchaser recovered under her title insurance policy but also sued the vendors and the agent.

The trial judge found the vendors liable for negligent misrepresentation but dismissed the claims against the agent.

On appeal, the Court of Appeal upheld the vendors' liability and the application of the private insurance exception to prevent deduction of the insurance proceeds.

The Court allowed the purchaser's cross-appeal, finding the real estate agent negligent for failing to verify the vendors' representations or recommend an independent inspection, and apportioned fault equally between the vendors and the agent.

The appellant appealed the dismissal of her unjust enrichment claim against her deceased husband's mother.

The appellant and her husband had lived rent-free on the mother's farm and made extensive improvements to it.

After the husband's death, the appellant moved out and the mother sold the farm, keeping the proceeds.

The Court of Appeal upheld the trial judge's findings that the improvements were largely paid for by the husband's company, that the benefits of living rent-free offset the value of the improvements, and that the improvements were made voluntarily and in self-interest, providing a juristic reason for the mother to retain the benefit.

The moving party brought a motion to review an order denying his request for an extension of time to seek a review of a previous order.

The previous order had denied his motion to extend the time to seek leave to appeal a Divisional Court decision to the Court of Appeal.

The Court of Appeal dismissed the motion, finding no error in the motion judge's conclusion that the proposed appeal did not raise a question of public importance or a general principle of law requiring clarification.

The appellants appealed an order granting a mistrial in a motor vehicle accident damages trial.

The trial judge ordered a mistrial after finding that the cumulative effect of inflammatory comments made by the appellants' trial counsel during closing arguments impaired trial fairness and could not be cured by a correcting instruction.

The trial judge also declined to decide the issue of damages herself, preserving the respondents' right to a jury trial.

The Court of Appeal dismissed the appeal, deferring to the trial judge's assessment of the impact of counsel's statements and her decision to order a mistrial.

The appellants appealed the dismissal of their medical malpractice action arising from the death of the patient due to a pulmonary embolism following arthroscopic knee surgery.

The appellants argued the respondent orthopaedic surgeon was negligent in failing to warn the patient about the symptoms of a pulmonary embolism upon discharge.

The trial judge found the respondent met the standard of care, as the patient was not at a heightened risk of a pulmonary embolism at the time of discharge.

The Court of Appeal (majority) dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence and application of the standard of care.

The appellant corporation sued three of its former directors and its secured lender for breach of duty leading to its bankruptcy.

The defendants successfully moved for an order requiring the corporation to advance their legal expenses incurred in defending the action.

The Court of Appeal upheld the motion judge's decision, finding that the corporation's by-laws, read in conjunction with s. 136 of the Business Corporations Act, made the advancement of legal costs mandatory for the former directors.

The court also upheld the finding that the loan agreement required advancement for the secured lender, and that the motion judge did not err in ordering payment prior to assessment under the Solicitors' Act.

The defendant supplied a helicopter engine to the plaintiff under a commercial agreement containing a forum selection clause specifying Arizona as the exclusive jurisdiction.

After the helicopter crashed in Saskatchewan, the plaintiff sued in Ontario.

The motion judge dismissed the defendant's motion to stay the action, applying a forum non conveniens analysis.

The Court of Appeal allowed the appeal, holding that the motion judge erred by treating the forum selection clause as merely one factor in a forum non conveniens analysis.

Under the strong cause test, a forum selection clause in a commercial contract must be enforced unless exceptional circumstances are shown.

Following the outcome of the appeals, the court awarded costs to the respondent in the amount of $43,000, inclusive of GST and disbursements.

The appellant hospital appealed a trial judgment awarding the respondent doctor $3,000,000 in damages for the bad faith revocation of his hospital privileges.

The doctor cross-appealed the damage assessment, arguing it should have been higher.

The Court of Appeal dismissed both the appeal and the cross-appeal.

The Court found ample evidence to support the trial judge's finding that the hospital acted in bad faith and for an oblique motive when it summarily revoked the doctor's privileges.

On damages, the Court held that while the doctor failed to produce readily available evidence of his income loss, the trial judge was entitled to assess damages based on the proven magnitude of the loss, and was justified in reducing the claim by approximately half.

The applicant sought judicial review of a decision by the Ontario Labour Relations Board refusing his request for an adjournment and subsequently dismissing his application for review under s. 116 of the Employment Standards Act.

The Divisional Court dismissed the application, finding that the Board's refusal to grant the adjournment was reasonable and did not constitute a denial of natural justice.

The court noted the lateness of the request, lack of consent, prejudice to the responding parties, and the applicant's failure to obtain necessary documents in advance.

The plaintiff was dismissed from her employment with the City of Ottawa for insubordination after refusing to return to work under her supervisor and escalating a harassment complaint.

She was on sick leave at the time.

The City initially alleged just cause but withdrew the defence at trial and paid severance.

The trial judge awarded Wallace damages, finding the City made a mistake in dismissing her while on sick leave and that the dismissal for cause was unwarranted.

The Court of Appeal allowed the City's appeal, holding that an employer's reasonable belief in just cause and a mere mistake in timing do not constitute bad faith or unfair dealing required for Wallace damages.

The appellant mother purchased a used pool slide and asked the respondent pool store if it was 'okay' to install it on her 4-foot-deep aboveground pool.

The store employees assured her there would be 'no problem' but failed to warn her of the risk of catastrophic injury if the slide was used improperly in shallow water.

The appellant daughter used the slide, entered the water head first, and was rendered quadriplegic.

The Court of Appeal allowed the appeal, finding the pool store breached its duty of care by failing to warn of the non-obvious danger, and that this failure caused the injury.

The daughter was found 20 per cent contributorily negligent for ignoring her mother's instructions to slide feet first.