Dena N. Varah

The court addressed costs and interest following a prior judgment on share valuation.

Due to mixed results and the inherent unpredictability of share valuation, the court ordered each party to bear their own costs, including expert fees.

On the issue of interest, the court determined that the discretion to award interest to dissenting shareholders under the Ontario Business Corporations Act (OBCA) was not curtailed by the corporation's ability to pay.

Prejudgment interest was awarded at the prescribed rate of 0.8% from the date of the statutory offer (May 11, 2017) to the date of the judgment, with postjudgment interest thereafter, on the determined share values for the dissenting shareholders.

The applicant company sought to fix the fair market value of common shares held by dissenting shareholders who opposed amendments to create convertible preferred shares.

The court rejected the applicant's liquidation approach to valuation, instead valuing the company as an ongoing concern using the discounted cash flow (DCF) method.

The court determined that a three-month time delay in the commencement of projected cash flows was appropriate, balancing the company's straightened financial circumstances with its ongoing viability.

The "en bloc" fair market value was fixed at $12,300,000, resulting in a per share value of $0.304.

The plaintiffs sought summary judgment against Stewart Title Guaranty Company for $223,555.74, alleging coverage under their title insurance policy due to structural defects in their home that violated the Ontario Building Code and rendered the property unmarketable.

The court found that while the property's title was unmarketable under Covered Title Risk (CTR) clause 19, coverage was excluded by exclusion clause 7, which pertained to structures not built in accordance with applicable building codes.

The court also found no coverage under CTR clause 20, as there was no evidence of a governmental authority forcing remedial work.

Consequently, the plaintiffs' motion for summary judgment against Stewart Title was dismissed.

The appellant appealed a motion judge's decision dismissing his second motion to change child and spousal support and granting the respondent's cross-motion.

The appellant had failed to produce required financial disclosure, including income tax returns, despite multiple court orders over two years.

The motion judge dismissed the motion based on this failure to disclose.

The appellant sought to introduce his 2015 and 2016 tax returns as fresh evidence on appeal.

The Court of Appeal declined to admit the fresh evidence and upheld the motion judge's decision, finding the appellant had not met the test for introducing fresh evidence and had failed in his fundamental duty to disclose financial information.

The court rejected the appellant's procedural fairness arguments, noting he had benefitted from judicial indulgences rather than suffered unfairness.

The applicant, Tibbett & Britten Group Canada Inc., sought costs on a full indemnity basis after being successful in a prior application.

The court determined that the original agreement providing for full indemnity costs was spent and a new agreement, lacking such a provision, governed.

Consequently, the applicant was awarded costs on a partial indemnity basis.

The court also denied the applicant's claim for costs related to an FSCO investigation, characterizing them as potential damages rather than costs of the proceeding.

Additionally, certain disbursements for file review and irrelevant legal research were disallowed.

The respondent's request for costs for having to respond to the applicant's costs submissions was denied as there were legitimate issues to be determined.

The applicant sought a declaration that the respondent was responsible for funding a deficit that arose on the wind-up of a pension plan for employees at certain warehouses.

The warehouses were previously operated by the applicant's predecessor under a warehousing and transportation agreement with the respondent's predecessor.

The court found that the respondent was contractually liable under the agreement to reimburse the applicant for the deficit as an 'Employee Termination Payment'.

Furthermore, the court concluded that the respondent had subsequently assumed direct responsibility for funding the deficit.

The court rejected the respondent's limitation period and contributory fault defences, granting the declaration.

The plaintiff sued two doctors for medical malpractice, alleging that a failure to notify her of a referral appointment led to prolonged casting of her fractured fingers and a poorer outcome.

The court found that the referring doctor's office had properly notified the plaintiff of the appointment, which she failed to attend.

Furthermore, the court accepted expert evidence that the prolonged casting met the standard of care given the severity of the fractures, and that any delay in mobilization did not cause the plaintiff's permanent impairment.

The action was dismissed.

The appellants appealed the dismissal of their medical malpractice action following the death of a 22-year-old man in hospital.

The deceased had been switched from morphine to Dilaudid by the respondent physician, and the appellants alleged the dosage was excessive and caused his death by opioid overdose.

The trial judge accepted the respondent's expert evidence that the dosage met the standard of care and that the cause of death was not an opioid overdose.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach to liability, standard of care, or causation.

The applicant, an Aboriginal woman suffering from chronic pain, alleged discrimination in services on the basis of race, colour, ancestry, and disability, as well as reprisal.

She claimed her physician targeted Aboriginal patients for urinalysis and improperly reduced her pain medication, and subsequently dismissed her from his practice after she filed the human rights application.

The Tribunal found that the physician had changed his narcotics prescribing and testing practices for all patients following a directive from the Non-Insured Health Benefits Program, and that the applicant's personal characteristics were not a factor in his clinical decisions.

The Tribunal also found that the termination of the physician-patient relationship did not constitute reprisal, as it was based on the physician's professional obligation to avoid a conflict of interest once the relationship became adversarial.

The application was dismissed.

The plaintiffs brought a medical negligence action alleging that a hospitalist physician negligently prescribed excessive doses of hydromorphone (Dilaudid) to a patient who had previously received morphine and was allegedly opioid‑naive.

The patient died several hours after receiving multiple doses of Dilaudid, and the coroner’s report listed the cause of death as acute mixed hydromorphone and morphine intoxication.

The court heard competing expert evidence regarding opioid equivalency ratios, titration practices, and whether the physician’s 5 mg dosing fell below the standard of care for a hospitalist managing severe uncontrolled pain.

The court preferred the defence experts’ evidence that the dosing decision was a reasonable clinical judgment given the patient’s persistent severe pain and lack of response to morphine, and that reliance on experienced nurses for monitoring was appropriate.

The court also found the clinical course inconsistent with opioid toxicity and concluded the plaintiffs had not proven causation on a balance of probabilities.

The negligence claim was dismissed.

In a complex fraud action under case management, the parties sought different variations to a previously ordered litigation timetable.

The defendants proposed proceeding with limited examinations for discovery while postponing key examinations until resolution of an appeal concerning access to funds for legal defence.

The plaintiff argued that all discoveries should be delayed to avoid duplicative preparation and increased costs.

The court held that further discovery scheduling was impractical while a pending Divisional Court appeal would determine whether certain defendants could fund their defence.

The judge declined to impose additional discovery deadlines and directed the parties to return for a further case conference within three weeks after the appeal decision, at which point a peremptory trial date might be set.

Following reasons on the underlying application, the court determined the appropriate costs award.

Applying s. 131(1) of the Courts of Justice Act and the discretionary factors in Rule 57 of the Rules of Civil Procedure, the court emphasized the result of the proceeding, the reasonableness of the steps taken, and proportionality.

Although the respondent argued that the applicants’ legal fees were high relative to his own expenses, the court found the applicants’ partial indemnity bill of costs and disbursements generally reasonable.

Exercising its discretion, the court fixed partial indemnity legal fees at $65,000 plus HST and disbursements.

The respondent was ordered to pay total costs of $84,092.17.

The plaintiff, York University, sought leave to appeal an order discharging a certificate of pending litigation on a property and authorizing its sale or mortgage to fund the defendants' legal representation.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's assessment of the equities, particularly the consideration of the personal circumstances of a non-owner defendant in a fraudulent conveyance claim.

The court also noted the importance of clarifying the legal principles for discharging such certificates to guide future cases.

Following a successful medical negligence trial, the plaintiffs sought costs after achieving complete success on liability and damages of $190,000.

The plaintiffs had made a Rule 49 offer of $150,000 inclusive of prejudgment interest prior to trial and argued that the judgment exceeded the offer by 31%, entitling them to substantial indemnity costs from the offer date.

The defendant argued the claimed costs were disproportionate to the damages and that agreeing to damages prior to trial prevented a determination that the offer had been beaten.

The court found the plaintiffs had repeatedly attempted settlement and that the defendant displayed intransigence in proceeding to trial despite the standing offer.

Applying the principles of fairness, reasonableness, and the reasonable expectations of the parties, the court awarded the plaintiffs their full claimed costs and disbursements.

Following a major apartment building fire, the owner and property manager were found liable as one defendant.

The appellant insured both the owner and property manager, while the respondent insured only the property manager.

After the respondent paid the full excess claim to the tort plaintiffs, it sought to recover half the amount from the appellant.

The Court of Appeal upheld the trial judge's decision that the respondent was entitled to recover 50% from the appellant under the principles of equitable contribution and unjust enrichment, as the appellant retained an obligation to indemnify the owner.

The appellants requested a suspension of the court's judgment released on June 10, 2013.

On consent of the respondent, the Court of Appeal for Ontario ordered that the judgment be suspended until June 25, 2013, to allow for an orderly winding-down of the operations of RX Processing Services Inc.

The appellants operated an online pharmacy selling prescription drugs to Americans, with a call center located in Ontario.

The Ontario College of Pharmacists sought an injunction to stop the appellants from selling drugs without accreditation and using restricted terms.

The application judge granted the injunction, finding the sales occurred in Ontario and the College had jurisdiction.

The Court of Appeal dismissed the appeal, holding that a purposive approach to the legislation confirmed the sales took place in Ontario and that there was a sufficient connection to ground the College's jurisdiction to protect the public interest.

The Ontario College of Pharmacists brought an application for declaratory and injunctive relief against the respondents, who operated an internet pharmacy business selling prescription drugs to consumers outside Canada.

The respondents argued that their corporate restructuring, which involved an Ontario call centre processing orders for a Belize corporation, removed them from the College's jurisdiction.

The court found a sufficient connection to Ontario to engage the College's jurisdiction and determined that the sale of drugs was taking place in Ontario.

The court held that the respondents were operating a pharmacy without accreditation, selling drugs without pharmacists, and improperly using pharmacy designations, in breach of the Drug and Pharmacies Regulation Act and related legislation.

A permanent injunction was granted.

The appellant, a permanent resident of Quebec, was catastrophically injured by an uninsured automobile in Ontario.

She received a non-pecuniary damage indemnity under the SAAQ and sought to recover the full uninsured limits under her mother's Ontario automobile insurance policy.

The Court of Appeal held that the SAAQ benefit was deductible from the uninsured limits pursuant to s. 2(1)(b) of Reg. 676 to avoid double recovery, and that this regulation did not conflict with s. 267.8(7) of the Insurance Act.

The appeal was dismissed.

The defendants sought authorization to release additional funds held in trust to pay legal fees incurred in defending litigation involving multiple defendants.

The funds originated from encumbrances placed on residential properties pursuant to a prior consent order permitting borrowing to finance the legal defence of two defendants.

The court was required to determine the proper allocation of legal fees where work performed by counsel benefitted both those defendants and a co‑defendant who was not entitled to access the encumbered property funds.

Applying principles governing payment of legal fees from assets subject to proprietary injunctions, the court concluded that only part of the joint defence work could properly be charged to the trust funds.

The court ordered that the two defendants were entitled to recover 50% of the total legal fees, taxes, and disbursements from the trust account.