David Trafford

The defendants moved to strike the plaintiffs' fresh-as-amended statement of claim, which primarily asserted an unwritten partnership between the parties in connection with two Toronto-area real estate development projects.

The court found the alleged partnership was unsupported by the pleaded facts, noting the parties had created multiple corporate and limited partnership entities with express no-partnership and entire agreement clauses.

All causes of action — breach of fiduciary duty, duty of good faith, tortious interference with economic relations, breach of contract, and oppression — were struck as disclosing no reasonable cause of action.

Leave to amend was denied, and the respondents' cross-motions to convert the parallel application to an action and consolidate the proceedings were also dismissed.

The appellant City of Hamilton appealed a trial judgment finding it and ArcelorMittal Dofasco Inc. (AMD) jointly and severally liable for damages arising from periodic flooding of the respondent National Steel Car Limited's industrial property caused by wastewater discharge into a clogged drainage channel.

The trial judge awarded compensatory damages of approximately $5.3 million (apportioned equally between the defendants), punitive damages of $400,000 against the City and $500,000 against AMD, and granted a mandatory injunction requiring remediation and maintenance of the channel.

The City appealed on four grounds: (1) the equal apportionment of liability; (2) failure to find mitigation by National; (3) the punitive damages award; and (4) the terms of the injunction.

The Court of Appeal dismissed the appeal except for a clarification to the injunction language.

A neighbourhood association sought to enforce restrictive covenants and by-laws against a property owner who proposed to add eight new windows to the exterior side wall of his townhouse following fire damage repairs.

The owner challenged the validity of the restrictive covenants as vague, uncertain, and ambiguous, arguing they lacked objective criteria and could be enforced arbitrarily.

The court upheld the restrictive covenants as valid and enforceable, finding they were part of a building scheme designed to preserve uniformity of the community's exterior appearance.

The court distinguished building schemes from developer's restrictive covenants, noting that under a building scheme all owners share similar burdens and benefits.

The court granted the association's application for a declaration that the covenants were valid and enforceable, and that the owner was in breach.

The defendants moved to strike the plaintiffs' amended statement of claim on the ground that it discloses no reasonable cause of action.

The court found that the plaintiffs failed to adequately plead the existence of a partnership relationship between the individual plaintiff and the defendants, failed to plead the material facts necessary to establish breach of contract claims with the required clarity and precision, and failed to plead the essential elements of various tort claims including tortious interference with economic interests, breach of fiduciary duty, breach of duty of good faith, unjust enrichment, conspiracy, negligence, and negligent misrepresentation.

The court granted the motion to strike and struck out the amended statement of claim, but granted leave to amend within 45 days.

This decision concerns a dispute over the legal and beneficial ownership of lands surrendered by several First Nations to Canada in 1908, known as the Unsold Surrendered Lands (USL), including the Point Park and associated roads in Fort Frances, Ontario.

The Town of Fort Frances sought summary judgment declaring it the owner of these lands or, alternatively, a public trust or entitlement to damages.

The First Nations, Canada, and Ontario opposed, seeking dismissal of the Town’s claims.

The court found that the Agency One Reserve was a validly created reserve, that the 1908 Order-in-Council (OIC) did not convey the USL to the Town by fee simple or public trust, and that the Town’s claims to the lands, roads, and damages were without merit.

The Town’s motion was dismissed, and the counterclaim struck.

The court considered whether the Receiver could disclaim an agreement of purchase and sale for a condominium unit, where the purchaser (Berry) claimed entitlement to specific performance and an equitable interest in the unit.

The Receiver, supported by the senior secured creditor, sought to maximize recovery for creditors.

The court found that Berry had not paid the full purchase price, that the supplementary and "as is, where is" agreements were not enforceable, and that the equities did not support a preference for Berry over other creditors.

The Receiver was authorized to disclaim the agreements.

Following a trial where the defendants were found liable in nuisance and negligence for flooding the plaintiff's lands, the parties disagreed on the calculation of prejudgment interest (PJI).

The plaintiff sought PJI based on the Canadian bank prime rate compounded annually, while the defendant argued for the statutory rate under s. 128 of the Courts of Justice Act.

The court exercised its discretion under s. 130 of the Act to award compound interest at the prime rate, finding that the statutory rate would under-compensate the plaintiff and provide an unwarranted financial windfall to the defendants who had avoided maintenance costs for decades.

This endorsement addresses three motions within a receivership proceeding.

Mizrahi Inc. (MI) sought extensive production of construction documents and an increased reserve, arguing relevance to its pending payment motion and a set-off claim.

The Receiver sought a Lien Claims Resolution Order to standardize the process for resolving lien claims.

Gamma Windows and Walls International Inc. (Gamma) sought an order for payment of invoices, contract termination, and a reference to quantify its lien.

The court largely dismissed MI's document production request, finding it sought information for a collateral purpose (assessing a personal guarantee) and that sufficient information was already available through the SISP Data Room, with a minor exception for general cost information.

The Lien Claims Resolution Order was granted as unopposed.

Gamma's motion was adjourned to allow for consensual discussions, with the court emphasizing that its claims should be resolved through the newly established Lien Claims Resolution process or heard concurrently with MI's payment motion for judicial economy.

The plaintiff, National Steel Car Limited, brought an action against the City of Hamilton, ArcelorMittal Dofasco Inc., and the Hamilton Port Authority for damages caused by reoccurring flooding to its property from the Kenilworth Avenue Drainage Channel.

The court found the City and AMD liable in nuisance, negligence, and strict liability under the rule in Rylands v. Fletcher for failing to maintain the channel and altering its flow, which caused substantial and unreasonable interference with the plaintiff's property.

The action against the Hamilton Port Authority was dismissed.

The court awarded the plaintiff over $5.2 million in compensatory damages, granted a permanent mandatory injunction requiring the City and AMD to remediate and maintain the channel, and awarded punitive damages of $500,000 against AMD and $400,000 against the City.

The plaintiff, a self-represented lawyer, initiated an action against multiple defendants concerning a failed real estate transaction and a prior judgment that ordered the return of a deposit.

The defendants moved to strike the plaintiff's Fresh as Amended Statement of Claim, arguing it constituted an abuse of process, was frivolous and vexatious, and was barred by res judicata and collateral attack.

The court found the pleading to be a significant violation of pleading rules and confirmed that the issues raised had been previously decided.

Consequently, the defendants' motion to strike the statement of claim was granted without leave to amend.

The Business Development Bank of Canada (the bank) brought a motion to quash an appeal initiated by 170 Willowdale Investments Corp. (the appellant).

The appellant subsequently abandoned its appeal.

The court found that a contractual term between the parties entitled the bank to full indemnity costs.

Consequently, the bank was awarded its costs of the abandoned appeal in the amount of $19,791.95.

The appellants appealed a motion judge's decision to strike portions of their Response to a Request for Particulars and Reply.

These struck portions re-introduced allegations of negligence from 2008 and 2009, which a Case Management Master had previously ruled were new causes of action and denied leave to amend the statement of claim to include them.

This Master's decision was upheld on appeal.

The motion judge struck the pleadings based on res judicata, issue estoppel, and abuse of process.

The Court of Appeal dismissed the appeal, affirming that re-litigation doctrines apply to decisions of associate justices (Masters) on pleadings motions, and that the motion judge correctly applied the "plain and obvious" test.

National Steel Car Limited challenged Ontario's Feed-In Tariff (FIT) Programs, arguing that the increased electricity costs passed to consumers via the "Global Adjustment" constituted an unlawful, unconstitutional tax.

The applicant contended that the FIT Programs' stated environmental and energy purposes were a "falsehood" and their true aim was economic stimulus, making the levy a "colourable taxation" enacted by regulation rather than statute, violating sections 53 and 54 of the Constitution Act, 1867.

The court dismissed the applications, finding that the FIT Programs were not colourable taxation and served legitimate regulatory purposes related to Ontario's electricity system, including promoting renewable energy and economic development.

The court concluded that the levy was properly characterized as an intra vires regulatory charge.

The defendants moved to strike the plaintiffs' Response to Demand for Particulars and portions of their Reply.

The plaintiffs had previously been denied leave to amend their statement of claim to add causes of action relating to events in 2008 and 2009, with the court finding those claims were not already pleaded.

The plaintiffs subsequently attempted to assert in their particulars and reply that the original claim did include those causes of action.

The court granted the defendants' motion, holding that the plaintiffs were bound by the prior final decisions under the doctrines of issue estoppel and abuse of process.

The parties attended a case conference to address the implementation of a prior order enforcing Letters of Request from a Florida court.

The court clarified that the prior order only applies to examinations conducted in Ontario, not to depositions held in Florida.

The court also ruled that the respondent's Ontario counsel is entitled to review documents generated by keyword searches for relevancy prior to production, provided they produce a log of all hits indicating their relevancy determinations.

This endorsement addresses the issue of costs following an application to enforce two Letters of Request from a Florida court, directed at David Smith.

The underlying dispute involved allegations of a hate mail campaign orchestrated by Isaac Perlmutter against Harold Peerenboom, with David Smith allegedly involved.

All parties (Isaac and Laura Perlmutter, Harold Peerenboom, and David Smith) sought costs for the Canadian application.

The court found it impossible to meaningfully decide the issue of costs without knowing the ultimate results of the two related Florida actions, as the success or failure of the allegations would significantly impact the entitlement to costs.

Given the ongoing litigation and the direct interest of all parties in the outcome, the court ruled that each party should bear its own costs.

The appellant, a heavy electricity user, challenged the constitutionality of the Global Adjustment component of Ontario's electricity pricing formula, which funds the Feed-in Tariff (FIT) program.

The appellant argued that the FIT program component was a colourable attempt to disguise a tax as a regulatory charge, designed to provide economic stimulus and subsidies to preferred communities (aboriginal peoples, co-operatives, and municipalities) rather than to regulate electricity generation.

The motion judge struck the applications, finding the Global Adjustment was a valid regulatory charge within a closed system.

The Court of Appeal allowed the appeal, finding the appellant's colourability challenge was sufficiently plausible that the applications should not have been dismissed on a pleadings motion and should proceed to a full hearing on the merits.

The court issued a costs endorsement following successful motions by the Attorney General of Ontario, Her Majesty the Queen in Right of Ontario, and the Independent Electricity System Operator (IESO) to strike two constitutional challenge applications.

The applications, brought by National Steel Car Limited, challenged aspects of Ontario's Global Adjustment electricity regime.

The court awarded partial indemnity costs to the Attorney General and Her Majesty in the amount of $50,000, and to the IESO in the amount of $75,000.

The decision considered the general principles of costs under Rule 57.01, the principle of indemnity, and the reasonable expectations of the parties.

It addressed the applicant's argument of being a public interest litigant and confirmed that a party fully participating in and supporting a successful motion, even without formally bringing it, can be awarded costs, subject to adjustment.

The respondents brought a motion to strike out two applications challenging the constitutionality of the Global Adjustment under the Electricity Act, 1998.

The responding party argued that the Global Adjustment was an unconstitutional tax that violated s. 53 of the Constitution Act, 1867.

The court applied the Lawson and Westbank tests, concluding that the Global Adjustment is a regulatory charge tied to a complex regulatory scheme, not a tax.

The court found it plain and obvious that the applications could not succeed and granted the motion to strike.

The plaintiffs, National Industries Inc. and National Steel Car Limited, sought to amend their statement of claim against their insurance brokers, Peter Kirkwood and Marsh Canada Limited, to include allegations of negligence from 2008 and 2009 regarding D&O coverage.

The plaintiffs argued these were particulars of existing claims, while the defendants contended they were new causes of action barred by the limitation period.

The court found the proposed amendments constituted new causes of action, as they did not arise from the same factual matrix as the original claim, which focused on D&O insurance policies from 2010 and 2011.

Consequently, leave to amend the claim was dismissed.