Douglas O. Smith

The self-represented plaintiff brought an action against the Town of East Gwillimbury, alleging it failed to enforce zoning by-laws against his neighbour's property.

The defendant municipality brought a motion to strike the 202-page draft amended statement of claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action.

Applying the Anns/Cooper test, the court held that a municipality owes no private law duty of care to a ratepayer to enforce its by-laws.

The motion was granted and the action was dismissed without leave to amend.

The Police defendants moved to strike the plaintiffs' jury notice on the grounds that it was served after pleadings closed and that justice would be better served by a trial without a jury.

The court found that the pleadings had been re-opened for all purposes following amendments, making the jury notice timely.

However, the court struck the jury notice because the presence of multiple self-represented litigants, highly charged allegations, and complex causes of action made a jury trial impractical and risked a mistrial.

Costs of $7,000 were awarded to the successful Police defendants.

The applicant brought a motion under Rule 39.03 to compel the examination of a Vice-President at Infrastructure Ontario in the context of an application for judicial review challenging the expropriation of its properties.

The applicant sought to supplement the record with evidence regarding the scope, rationale, and scheme of the expropriations.

The Divisional Court dismissed the motion, finding no reasonable evidentiary basis that the proposed witness participated in briefing the decision-maker, nor did the proposed topics fall within the limited exceptions for supplementing a record on judicial review.

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 Royal Bank of Canada applied for a bankruptcy order against Nuvoola Inc., which the debtor opposed primarily on jurisdictional grounds, arguing its head office had moved to Quebec.

The court analyzed the definition of the "locality of the debtor" under the Bankruptcy and Insolvency Act, finding that the debtor's president, accounting records, and banking activities were centered in Ottawa, and that the debtor had agreed to Ontario jurisdiction in its commitment letters.

The court also determined that the debtor had committed an act of bankruptcy by failing to meet its liabilities generally as they became due.

Consequently, the court granted the application and issued the bankruptcy order, appointing MNP Inc. as the Licensed Insolvency Trustee.

The applicant sought judicial review to quash two Orders in Council (OICs) related to the expropriation of its lands for a transit-oriented community project.

The first OIC designated the lands as transit-oriented community land, removing the right to a hearing of necessity, while the second authorized the expropriation.

The Divisional Court dismissed the application, applying the Auer framework to find that both OICs were reasonably within the scope of authority delegated by the enabling legislation.

The court rejected arguments that the OICs were arbitrary, discriminatory, unnecessary, or made in bad faith.

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.

The plaintiff brought a motion to inspect documents over which the defendant claimed solicitor-client and litigation privilege in an action for property damage allegedly caused by negligent road construction.

The court reviewed the disputed documents and found that most were protected by privilege, as litigation was contemplated early in the parties' negotiations.

The court ordered the production of a few documents that did not meet the test for privilege.

The court also dismissed the plaintiff's argument that the defendant had impliedly waived privilege in its Statement of Defence, but granted the plaintiff's motion to strike a paragraph of the Statement of Defence with leave to amend.

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.

The appellant appealed the dismissal of his action against the respondent police officers and police services board for negligent investigation and Charter breaches arising from his arrest.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's factual findings or her discretionary decision to deny a jury trial.

The Court also declined to admit fresh evidence, as it did not meet the Palmer criteria.

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 applicant brought a motion to enforce personal guarantees executed by the respondents, a husband and wife who were directors of the debtor corporation.

The husband did not oppose the motion.

The wife argued she was released from her guarantee due to an undisclosed material change in the principal amount of the indebtedness, lack of independent legal advice, and that the applicant had released her through its conduct during restructuring negotiations.

The court found that the guarantee explicitly allowed for changes in the amount of obligations, the wife was a sophisticated business owner who did not require independent legal advice, and the applicant had not provided an express written waiver as required by the guarantee.

The motion was granted and both respondents were found liable.

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 plaintiffs brought a bankruptcy application against the defendant for an alleged indebtedness of approximately US$32.4 million for unpaid wholesale apparel.

The defendant moved to stay or dismiss the application, arguing there was a bona fide dispute over the debt due to the plaintiffs' alleged breaches of a Master Sourcing Agreement, which contained an exclusive forum clause designating New York courts.

The court found a bona fide dispute existed and that it lacked jurisdiction to resolve the contractual claims due to the forum selection clause.

The bankruptcy application was stayed on terms, including a requirement for the defendant to pay funds into court, pending the resolution of the New York proceeding.