Douglas O. Smith

The appellants, foreign corporations and an individual, appealed a motion judge's order dismissing their motion to dismiss the action for want of jurisdiction or to stay it on the basis of forum non conveniens.

The respondent municipality sued for breach of contract, fraud, and conspiracy regarding a waste management agreement.

The Court of Appeal upheld the motion judge's finding that the respondent established a 'good arguable case' for jurisdiction based on the pleadings and evidence of agency.

The court also deferred to the motion judge's conclusion that Ontario was the appropriate forum given the torts and contract were connected to the province.

The plaintiff was injured in a charity bicycle ride when the defendant swerved and clipped his wheel.

The defendant pleaded volenti and contributory negligence, and served a jury notice.

At trial, the judge struck the jury notice, finding that the jury would be confused by the waiver signed by the participants and the volenti defence.

The trial judge found the defendant entirely liable.

The defendant appealed.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred in principle by striking the jury notice.

The volenti defence is not a claim for declaratory relief, and a properly instructed jury could understand the limited legal effect of the waiver.

The appellant appealed a Small Claims Court order staying its action for unpaid fees against the respondent law firm.

The deputy judge had stayed the action pending the approval of the minor client's settlement under Rule 7.08 of the Rules of Civil Procedure in the Superior Court.

The Divisional Court allowed the appeal, finding that Rule 7.08 is designed to protect litigants under a disability, not lawyers, and does not apply to a contract dispute between a service provider and a law firm.

The stay was vacated and the matter remitted to the Small Claims Court for trial.

The plaintiff municipality brought a motion for an interlocutory mandatory order requiring the defendants to remove a berm constructed on their property adjacent to a municipal road.

The municipality argued the berm caused flooding in the road's drainage ditches, creating safety hazards and potential damage to the pavement structure, and blocked water flow to a provincially significant wetland.

The defendants claimed the flooding was caused by the municipality's own ditch maintenance work.

The court preferred the municipality's expert evidence, finding the berm caused the flooding and was located within the wetland setback in breach of conservation regulations.

The court held that the municipal ditch formed part of the 'highway' under the Municipal Act, 2001, and granted a statutory injunction and an injunction for public nuisance, ordering the defendants to remove the berm.

The defendant insurer moved to set aside a noting in default and default judgment obtained by the plaintiff in a claim for accidental death insurance benefits.

The court applied the test for setting aside default judgments, requiring prompt action, a reasonable explanation for the default, and an arguable defence on the merits.

The court found the motion was brought promptly and that the insurer had a plausible explanation for failing to defend, given lengthy periods of inactivity and communications suggesting litigation would not proceed imminently.

The insurer also demonstrated an arguable defence, including the possibility that the insured’s death was suicide or otherwise excluded under the policy.

Additionally, the court held that the action had been deemed dismissed as abandoned under Rule 48.15(6), rendering the default judgment irregular.

The appellants guaranteed loan facilities provided by the respondent bank to a corporate debtor.

After the debtor defaulted, the bank appointed a receiver and sued the appellants for the shortfall.

The motion judge granted summary judgment to the bank.

On appeal, the appellants argued the bank acted commercially unreasonably by not allowing the debtor to be sold as a going concern and that material variations to the loan discharged their guarantees.

The Court of Appeal dismissed the appeal, finding the bank had no duty to continue extending credit and that the variations were authorized by the guarantee agreements.

Following the dismissal of a civil action alleging racial and gender discrimination in a police investigation, the defendants sought costs.

Although the plaintiff subjectively believed he had been discriminated against and evidence revealed negligent and substandard police record-keeping, the court had found no discriminatory motive.

The plaintiff argued he was impecunious and sought costs in his favour due to the public importance of the issues.

The court rejected the claim of impecuniosity and applied the principles under Rule 57 and the guidance in Boucher to determine the appropriate award.

Costs were awarded to the defendants in the reduced amount of $120,000 all-inclusive.

The plaintiff brought an action for malicious prosecution, negligent investigation, and breaches of sections 7 and 15 of the Charter against the defendant police services board and individual officers.

The claims arose from the plaintiff's arrest and detention for domestic assault and uttering death threats.

The plaintiff alleged that the police failed to properly investigate by not seeking his version of events and discriminated against him based on race and gender, noting that his spouse was not ultimately prosecuted despite admitting to striking him first.

The Superior Court of Justice dismissed the action, finding that the police had reasonable and probable grounds to arrest and charge the plaintiff.

The court held that the police's failure to interview the plaintiff was dictated by his Charter rights to silence and counsel, and that the different treatment of the parties was based on the evidence of the plaintiff's escalating violence, not discriminatory motives.

The appellant appealed a summary judgment dismissing his claim against the respondent bank regarding disability insurance coverage.

The appellant claimed he believed he had disability insurance through the bank when he obtained a mortgage loan.

The Court of Appeal upheld the motion judge's finding that it was not credible the appellant would have purchased disability insurance even if offered, noting he had declined other insurance, had no prior disability insurance, and the bank did not offer mortgage disability insurance at the time.

The appeal was dismissed with costs.

The appellant appealed a decision dismissing his claims.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the constitutional issues had already been decided.

The Court held that under the current Limitations Act, fiduciary claims are subject to limitation periods as they fall under 'claims pursued in court' pursuant to section 2(1).

However, the Court noted the appellant could still pursue a claim solely for declaratory relief, which is not subject to limitations under the Act.

The applicant lender sought declaratory relief confirming the validity and priority of its security interests under a general security agreement granted by the respondent corporations, including over precious metals and a cause of action assigned to a third party.

The assignee opposed the declaration, arguing that a security agreement should not permit a creditor to control litigation brought by the debtor against the creditor itself.

The court accepted that causes of action may fall within the definition of collateral under a general security agreement but emphasized that control of the litigation would be exercised by the court‑appointed receiver rather than the secured creditor.

In those circumstances, the court found no unfairness or absurdity in including the assigned cause of action within the secured collateral.

Declaratory relief was granted confirming that the cause of action formed part of the collateral subject to the security.

The plaintiffs sought court approval of a settlement agreement resolving complex litigation and related bankruptcy proceedings arising from the collapse of Lehman Brothers.

The dispute concerned ownership and recovery of investment fund assets held by the prime broker at the time of its insolvency, including securities subject to re-hypothecation and claims advanced in multiple jurisdictions.

The court considered the fairness and reasonableness of the settlement, including its impact on investors and the risks and delays associated with continued litigation and cross-border enforcement.

Relying on principles reflected in the Bankruptcy and Insolvency Act and the court’s jurisdiction under the Courts of Justice Act, the court concluded that the compromise was fair and reasonable.

The court approved the settlement and issued vesting orders in relation to assets conveyed under the agreement.

The appellant appealed an order dismissing its motion to stay the respondents' action based on an exclusive forum selection clause in their agreements.

The Court of Appeal dismissed the appeal, finding that even if the clause applied, the respondents had shown 'strong cause' not to enforce it.

The court noted the appellant's delay in raising the jurisdictional issue, its inconsistent positions, and the risk of inconsistent verdicts between Canada and the United States.

This is a costs endorsement following an appeal regarding a receivership of public sector organizations operating affordable housing.

The appellants sought costs for a re-argued motion and the appeal.

The Court of Appeal rejected the 'hours times rates' approach, noting that public sector organizations should not be expected to pay full indemnity hourly rates and the hours docketed were excessive.

The court fixed the costs of the re-argued motion at $15,000 and the costs of the appeal at $30,000.

The appellant corporations were placed into receivership.

The boards of directors retained counsel to oppose the receivership and represent the corporations' interests.

The motion judge held that the boards did not have the right to retain counsel without court approval but awarded partial costs on an equitable basis.

On appeal, the Court of Appeal held that the boards retained residual authority to retain counsel without prior approval of the receiver or the court to challenge the receivership or the receiver's actions.

The Court ordered that the reasonable legal fees for the receivership litigation be paid out of the corporations' assets.

The appellants, a non-profit housing co-operative and a co-operative housing federation, appealed an order approving a receivership sale of the co-operative's assets to a municipality-controlled entity.

The appellants argued that the motion judge failed to properly consider the special nature of co-operative housing and the rights of its members.

The Court of Appeal dismissed the appeal, holding that the standard Soundair principles for approving a receiver's sale apply, and that the motion judge correctly balanced the special factors of social housing against the financial realities and statutory framework.

The plaintiffs appealed the trial judge's assessment of damages arising from a motor vehicle accident, arguing the judge erred in finding the main plaintiff failed to mitigate her damages.

The defendants cross-appealed the damages assessment and appealed the order adding the Police Services Board as a defendant, as well as the trial costs order.

The Court of Appeal dismissed the appeals regarding the addition of the Board and the damages assessments.

However, the Court allowed the defendants' costs appeal, finding the trial judge erred by comparing the defendants' settlement offers to the gross damages assessment rather than the net judgment after statutory deductions.

The costs order was varied to award the plaintiffs their disbursements throughout but no legal fees after the date of the defendants' second offer.

The applicants sought judicial review of the Region's decision to consent to the sale of a non-profit housing co-operative to the Region's social housing arm.

The Co-op was in receivership due to financial difficulties and need for capital repairs.

The Region consented to the sale without notifying the Co-op's board or members.

The Divisional Court held that the Region's decision was judicially reviewable and that the Region breached its duty of procedural fairness by failing to provide notice and an opportunity to make submissions.

However, given the urgent need for repairs, the court declined to quash the consent and deferred the matter to the Commercial List where the sale motion was pending.

The appellant, who had previously pleaded guilty to fraud over $5000, brought two civil proceedings against the police and others for false arrest, false imprisonment, defamation, conspiracy, and abuse of authority.

The respondents successfully moved for summary judgment.

The Court of Appeal dismissed the appeals, finding no error in the motion judge's conclusion that there was no genuine issue for trial, as the respondents acted lawfully and had reasonable and probable grounds for the charges.

The appellant, who had previously pled guilty to fraud, brought two civil actions against the police and others for false arrest, false imprisonment, defamation, conspiracy, and abuse of authority.

The respondents successfully moved for summary judgment.

On appeal, the Court of Appeal upheld the dismissals, finding no genuine issue for trial as the respondents acted lawfully, had reasonable and probable grounds for the charges, and there was no evidence to support the appellant's claims.