Douglas O. Smith

The appellant, Gaetano Di Blasi, appealed a trial order declaring a berm he constructed to be in breach of municipal bylaw, authorizing the Regional Municipality of York to enter his property for remediation, enjoining him from interfering with water flow, and requiring him to pay damages in nuisance.

He also appealed a contempt finding and a $10,000 fine for failing to comply with a 2014 order to remove the berm.

The Court of Appeal found no error in the trial judge’s decision, upheld the findings, and dismissed the appeal, awarding $25,000 in costs to the respondent.

The Debtors (Ten 4 System Ltd., 1000043321 Ontario Inc., and 1000122550 Ontario Inc.) sought leave to appeal an order appointing a receiver over their assets, pursuant to s. 193(e) of the Bankruptcy and Insolvency Act.

The Royal Bank of Canada, the creditor, opposed the motion.

The court dismissed the motion for leave to appeal, finding that the proposed grounds of appeal lacked prima facie merit, did not raise issues of general importance, and that granting leave would unduly hinder the receivership administration.

Costs were awarded to RBC.

The appellant appealed a summary judgment dismissing its action as statute-barred under the Limitations Act, 2002.

The action, assigned from a bankrupt estate, alleged negligence and breach of fiduciary duty by the former bankruptcy trustee and its representative.

The Court of Appeal found that the motion judge erred by reversing the onus of proof regarding discoverability and by failing to consider s. 12 of the Limitations Act, which applies to assigned claims in bankruptcy.

The court held that the limitation period analysis must account for the dual roles of the creditor as an inspector and the need to obtain court orders (s. 38 and s. 215 BIA) before commencing action against a trustee.

The appeal was allowed, the dismissal set aside, and the limitation period issue was directed to proceed to trial.

This appeal addresses issues of jurisdiction simpliciter and forum non conveniens in a complex international insurance coverage dispute.

Vale and RSA initiated actions in Ontario seeking coverage for environmental liabilities, primarily in Ontario, after Travelers commenced a similar action in New York.

The motion judge largely found Ontario had jurisdiction and was not forum non conveniens, except for North River.

The Court of Appeal dismissed the insurers' appeals, affirming Ontario's jurisdiction over them, and allowed Vale's appeal, finding Ontario also had jurisdiction over North River.

The court emphasized that a comprehensive general liability insurer underwriting Ontario risks connects itself to Ontario for jurisdictional purposes, and that the "first-to-file" rule does not automatically determine the appropriate forum.

The defendants brought a motion for summary dismissal of the plaintiffs' action.

The plaintiffs claimed damages for negligence and misfeasance in public office against the police defendants for failing to recover property allegedly stolen by a family member.

The court found that the police did not owe a private law duty of care to the plaintiffs, as they were not suspects or a narrow group of potential victims of a specific threat.

Furthermore, there was no evidence of bad faith or unlawful conduct to support a claim of misfeasance in public office.

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

The appellant, injured in a prisoner transport van, sued for negligence alleging design deficiencies.

After settling with the Province, the appellant pursued the driver and the City of Toronto, primarily seeking punitive damages for alleged callous disregard for prisoner safety.

The trial judge dismissed the claim, finding no conduct warranting punitive damages.

The Court of Appeal upheld the trial judge's decision, finding no error in the assessment of the punitive damages claim or the factual findings, and dismissed the appeal with costs.

Supplemental reasons issued to correct an error in the court's previous decision (2022 ONSC 12).

The court corrected paragraph 4 to clarify that Lloyds should not have been listed as a party challenging the forum of the action.

Vale Canada and its primary insurer, RSA, brought actions against numerous excess insurers for coverage of environmental remediation costs incurred primarily in Ontario.

Several foreign excess insurers brought motions challenging the jurisdiction of the Ontario court or seeking a stay based on forum non conveniens in favour of an action in New York.

The court found it had jurisdiction over all moving insurers except North River Insurance Company, concluding that the insurers were 'carrying on business' in Ontario by participating in a global insurance program for an Ontario-based company.

The court declined to stay the actions for forum non conveniens, finding Ontario to be the 'centre of gravity' for the dispute.

Claims by Vale Canada against two UK insurers were stayed pending arbitration.

The plaintiffs brought an action against multiple insurers for indemnity regarding environmental damage.

Several foreign defendants failed to deliver statements of defence within the required time limits, and one was noted in default.

The defendants sought an extension of time to defend or bring jurisdictional motions, arguing the court should wait for the outcome of a parallel proceeding commenced by one of the insurers in the United States.

The court refused to delay the Ontario proceeding, finding no prejudice to the defendants in requiring them to respond timely, and ordered the defendants to deliver their statements of defence or motion records by a specified deadline.

The applicants, operators of an indoor fitness facility, sought an interlocutory injunction to prohibit the enforcement of capacity limits imposed by the local Medical Officer of Health during the COVID-19 pandemic.

The court applied the elevated 'strong prima facie case' standard because the injunction would effectively determine the application and was mandatory in nature.

The court found the applicants failed to establish a strong prima facie case that the instructions were ultra vires, issued in bad faith, arbitrary, or contrary to the Human Rights Code.

The court also found the applicants failed to demonstrate irreparable harm to themselves, and that the balance of convenience favoured the public interest in enforcing public health measures.

The motion was dismissed.

The appellant, Felice Scala, appealed a trial judgment that dismissed his claim for damages alleging excessive police force during his arrest and the associated costs award.

The Court of Appeal upheld the trial judge's findings of fact and credibility, which largely favoured the police officers' account over the appellant's.

The trial judge found the appellant's evidence inconsistent and implausible, while the police officers' evidence was credible and reliable.

The appeal court found no palpable and overriding error in the trial judge's assessment of evidence or the application of the law regarding necessary and objectively reasonable force under s. 25(1) of the Criminal Code.

The appeal regarding the costs award was also dismissed, finding no basis to interfere with the trial judge's discretion.

The plaintiff bank brought motions for an order amending the style of cause, summary judgment against one defendant, and default judgment against the other defendant.

The defendants had provided joint and several personal guarantees for corporate loans that went into default, leading to a receivership.

The court granted the amendment to the style of cause to include aliases.

The court granted summary judgment against the defending guarantor, finding no genuine issue requiring a trial, and granted default judgment against the noted-in-default guarantor based on deemed admissions and affidavit evidence.

Judgment was granted for over $3 million plus full indemnity costs.

The plaintiff brought an action for malicious prosecution and negligent investigation against the police defendants after criminal charges against him were stayed by the Crown.

The defendants moved for summary judgment, arguing the action was statute-barred because it was commenced more than two years after the stay was entered.

The plaintiff argued the limitation period did not begin until the one-year period for the Crown to recommence the stayed charges had expired.

The court held that a Crown stay constitutes a favourable termination of proceedings and the limitation clock begins to run on the day the stay is entered.

The action was dismissed as statute-barred.

Following a successful motion by the defendants to enforce a binding settlement, the defendants sought costs of the motion.

The defendants requested $5,000 on a partial indemnity basis.

The plaintiffs opposed, arguing financial hardship and seeking costs themselves.

The court found the defendants' request to be reasonable and modest, and fixed costs at $5,000 inclusive of fees, HST, and disbursements, payable if demanded.

The defendants brought a motion under Rule 49.09 to enforce a settlement agreement reached via email with the self-represented plaintiffs.

The plaintiffs argued the settlement was not binding because they had not signed a release, and alleged duress and unconscionability.

The court found that a binding agreement to dismiss the action without costs had been reached, and that a full and final release is an implied term of such a settlement.

Finding no evidence of duress or unconscionability, the court granted the motion and dismissed the action without costs.

The defendants were successful on a motion for summary judgment dismissing the plaintiff's action and sought costs on a partial indemnity scale.

The plaintiff opposed the quantum, arguing the evidentiary record on the motion was incomplete and the costs claimed were excessive.

The court rejected the plaintiff's arguments regarding the evidentiary record, noting the plaintiff was represented by counsel and chose not to file responding evidence.

The court found the defendants' claimed costs of $44,644.28 to be reasonable, proportionate, and within the range the plaintiff would reasonably expect to pay.

Costs were fixed in that amount.

The plaintiff, a criminal defence lawyer, sued the Halton Regional Police Service and several police officers for negligence after he was shot by a man who was under police surveillance.

The police defendants brought a motion for summary judgment, arguing they did not owe the plaintiff a private law duty of care.

The court granted summary judgment, dismissing the action, finding no special relationship of proximity existed between the police and the plaintiff that would give rise to such a duty.

The court emphasized that police duties are generally owed to the public as a whole, and the circumstances did not establish the plaintiff as part of a "narrow and distinct group of potential victims at risk from a specific threat" before the shooting.

This endorsement addresses the issue of costs following the dismissal of the plaintiffs' action for damages arising from an arrest.

The defendants, as the successful parties, sought costs.

The plaintiffs argued against a cost award, citing divided success, public interest litigation, and access to justice concerns.

The court rejected these arguments, affirming the general principle that costs follow the event.

While finding the defendants entitled to costs, the court declined to impose joint and several liability on both plaintiffs, instead apportioning costs separately.

The total amount of costs awarded was significantly reduced from the amount sought by the defendants, emphasizing proportionality and reasonableness, particularly given the case's initial designation as a simplified procedure action.

The plaintiff brought a civil action against the Toronto Police Services Board and individual officers, alleging they used excessive force during his arrest and were negligent in his subsequent detention.

The plaintiff claimed he was severely beaten without warning, while the police testified they executed a controlled take-down after he resisted arrest.

The court found the police officers' evidence credible and reliable, concluding that the force used was necessary, justified, and not excessive under section 25(1) of the Criminal Code.

The court also dismissed the plaintiff's claims of negligence and breach of fiduciary duty, ultimately dismissing the action in its entirety.

Following the dismissal of the plaintiff's action against the Toronto Police Services Board and two officers for alleged gratuitous assault and conspiracy, the defendants sought costs of $77,906.58 on a partial indemnity scale.

The court considered the complexity of the issues, the significant monetary claim, the importance of the matter to the officers, and the self-represented plaintiff's limited ability to pay.

Balancing these factors, the court fixed costs at $50,000 inclusive, payable by the plaintiff.