Earl Asher Cherniak

The appellant, Anna Marlena Butryn, appealed a summary judgment order enforcing minutes of settlement in mortgage enforcement proceedings.

She argued she signed the minutes under undue influence and duress from her husband, John Chetti, and without independent legal advice.

The Court of Appeal upheld the motion judge's decision, finding no evidence the respondent had knowledge of the alleged undue influence/duress, that the minutes of settlement provided significant benefits to the appellant, and that she was represented by experienced litigation counsel, making independent legal advice from a separate lawyer unnecessary.

The court reiterated that a spousal relationship does not automatically create a presumption of undue influence requiring third-party inquiry unless coupled with a manifestly disadvantageous transaction.

This appeal concerned a constitutional challenge by National Steel Car Limited to the costs of Ontario's Feed-in-Tariff (FIT) Program, arguing they constituted an unconstitutional tax disguised as a regulatory charge, primarily intended for economic stimulus.

The appellant contended that the program's true purpose was not related to electricity regulation.

The Court of Appeal upheld the application judge's decision, dismissing the appeal.

The court found that the FIT Program's primary purpose was regulatory, aimed at increasing renewable energy generation, improving air quality, planning for future supply needs, and encouraging Indigenous and community participation, with economic stimulus being an incidental, not dominant, characteristic.

The court also affirmed the sufficiency of the application judge's reasons and his assessment of expert witness bias.

This is an amended costs endorsement following a successful appeal by the respondents.

The Court of Appeal for Ontario awarded costs of the appeal to the respondents Burns Hubley LLP, Paul Gribilas, and J+W Foods Inc., inclusive of disbursements and interest, payable by the appellants.

The appellants, William Fehr Sr. and Dorothey Fehr, appealed a lower court order that permanently stayed their professional negligence action against Paul Gribilas (lawyer) and Burns Hubley LLP (accounting firm) based on a "no-claims-over" provision in a mutual release.

The release settled previous disputes, including the Fehrs' purported interest in J+W Foods Inc. The professional negligence action alleged that Gribilas and Burns Hubley LLP failed to protect the Fehrs' shareholdings.

The motions judge found the action to be an abuse of process because it contravened the no-claims-over clause, which prevented claims against parties who might seek contribution from the releasees (J+W Foods Inc., William Fehr Jr., Steven Trougakos).

The Court of Appeal dismissed the Fehrs' appeal, affirming that the motions judge had the inherent authority to stay the action as an abuse of process and that the defendants had a viable claim over, thereby triggering the no-claims-over provision.

The cross-appeal by Gribilas and Burns Hubley LLP was dismissed as moot.

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.

The appellant (mother) wrongfully retained two young children in Ontario after travelling from Dubai, UAE, where the children habitually resided.

The respondent father applied under s. 40 of the Children's Law Reform Act for a return order.

The trial judge declined jurisdiction under s. 23 of the CLRA, finding the serious harm threshold was not met, and ordered the children's return to Dubai.

The Supreme Court of Canada, 5-4, dismissed the appeal, holding that the trial judge committed no palpable and overriding error in concluding the children would not suffer serious harm, that separation from a primary caregiver does not automatically satisfy the serious harm threshold, and that the father's undertakings regarding the mother's residency should be included explicitly in the return order.

The dissent would have allowed the appeal on the basis that the trial judge materially misapprehended the evidence on both the likelihood and severity of harm.

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 appellants appealed a motion judge's decision dismissing their summary judgment motion and granting summary judgment and a permanent stay to the respondents.

The core issue was the appellants' failure to immediately disclose settlement agreements with other defendants, which altered the litigation's adversarial landscape.

The Court of Appeal affirmed the motion judge's finding that these contingent settlement agreements, which included provisions for private evidence gathering and financial incentives for cooperation, changed the adversarial relationship into a cooperative one, triggering the immediate disclosure rule from Handley Estate.

The court reiterated that immediate disclosure is mandatory, regardless of contingencies or confidentiality clauses, and that a stay of proceedings is the appropriate remedy for such an abuse of process.

The appeal was dismissed.

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.

This is a costs endorsement from the Court of Appeal for Ontario following a successful appeal where the respondent's action was dismissed.

The appellant sought full indemnity costs, arguing the respondent attempted to perpetrate a fraud at trial regarding a will's witnessing.

The court clarified the distinction between full and substantial indemnity costs, noting that conduct warranting sanction typically applies to trial proceedings.

However, the onerous task faced by the appellant on appeal due to the trial judge's acceptance of the respondent's evidence was considered.

The court also addressed the recovery of costs from the Estate, applying the "blended costs award" principle due to the testator's failure to properly execute his will, which caused the litigation.

The appellant, Brian Boese, appealed a trial judge's decision that his brother Bruce's will was formally valid under the Succession Law Reform Act.

The central issue was whether the respondent, Brenda Bayford, had proven the formal validity of a 2013 will (Version 2), which she claimed to have found after Bruce's death.

The appellant argued that the trial judge misapprehended expert handwriting evidence, which indicated that Bruce's signatures on two versions of the will (one unwitnessed, one witnessed) were identical copies, suggesting one was reproduced from the other.

The Court of Appeal found that the trial judge made a palpable and overriding error by misunderstanding the significance of the expert evidence and its implications for the appellant's theory of the case, particularly regarding the missing original unwitnessed will and inconsistencies in the respondent's testimony.

The court also rejected the respondent's motion to admit fresh evidence.

A class representative of Mr. Sub franchisees appealed the Court of Appeal's dismissal of their negligence claim against an exclusive meat supplier following a 2008 listeria recall that caused significant economic losses.

The majority held that the supplier owed no duty of care to the franchisees in respect of pure economic losses because the parties lacked the proximity required under the Anns/Cooper framework.

The majority found that neither the negligent misrepresentation nor the negligent supply of shoddy goods categories of pure economic loss applied, and that the multipartite contractual matrix — under which the franchisees could have sought alternative supply sources — precluded a finding of proximity.

The dissent would have recognized a novel duty of care arising from the close and direct relationship between the exclusive supplier and the franchisees who were contractually bound to purchase exclusively from it.

The appeal was dismissed five-to-four, with costs.

The defendants brought a motion for a mandatory interim injunction to enforce indemnity agreements and require the plaintiffs to advance funding for their legal expenses.

The court found that the Cytrynbaum jurisprudence did not apply because the motion sought a mandatory injunction against an individual and a corporation, rather than a final determination under the CBCA.

The court dismissed the motion, holding that the defendants failed to establish a strong prima facie case due to concerns about conflicts of interest and lack of independent legal advice in the drafting of the indemnity agreements.

The court also found no irreparable harm, as any harm could be quantified in monetary terms.

Following a successful appeal, the appellants sought costs of the proceedings in the Superior Court on a partial indemnity basis.

The respondents contested a disbursement for the appellants' expert witness on damages, arguing the expert's evidence was rejected by the application judge as a mere mathematical exercise.

The Court of Appeal agreed with the respondents, finding that disallowing the disbursement did not amount to an improper distributive costs order, and that the expert evidence provided no value as it consisted only of basic calculations using publicly available share prices.

Costs were awarded to the appellants excluding the expert disbursement.

The appellants appealed a jury verdict dismissing their claim against their home insurer following a fire that destroyed their house and its contents.

The insurer denied coverage on the basis that the appellants failed to report a material change in risk (using space heaters instead of a wood stove) and made wilfully false statements in their Proof of Loss.

The Court of Appeal found errors in the trial judge's instructions regarding the material change in risk, but upheld the dismissal of the action because the jury's finding of 39 wilfully false statements vitiated the claim.

The court also upheld the refusal to grant relief from forfeiture due to the appellants' unreasonable conduct.

However, the court allowed the costs appeal, reducing the trial costs awarded to the insurer from $616,843.27 on a substantial indemnity basis to $430,000 on a partial indemnity basis, finding the appellants' conduct in pursuing bad faith claims was not reprehensible enough to warrant an elevated scale.

The appellants appealed the dismissal of their application for damages arising from the respondent's refusal to honour the exercise of stock options.

The options were granted under a consulting agreement with a two-year term but specified a five-year exercise period.

The respondent argued the options expired six months after the consulting agreement ended, relying on an incorporated stock option plan.

The Court of Appeal allowed the appeal, finding the application judge erred in contractual interpretation.

The specific five-year exercise period in the grant took priority over the general termination provision in the incorporated plan.

Damages were awarded to the appellants in the amount of $2,820,000.

This decision addresses the costs arising from two applications brought by the Town of Oakville that were struck out by the court.

Clublink, the successful party, sought $137,903.70 in partial indemnity costs, while the Town argued for no costs or, alternatively, $30,000.

The court rejected the Town's arguments for denying costs, noting that the Town's counter-applications created an unnecessary multiplicity of proceedings.

While acknowledging the extensive litigation context and the involvement of multiple senior counsel, the court found Clublink's requested costs excessive for a relatively straightforward motion to strike.

Applying principles of fairness, reasonableness, and proportionality under the Courts of Justice Act and Rule 57.01, the court fixed costs on a partial indemnity basis at $65,000, inclusive of disbursements and HST.

The appellant was successful on appeal and sought costs for both the appeal and the underlying summary judgment motions.

The parties agreed to fix the appeal costs at $75,000.

For the motions, the appellant sought partial indemnity costs of approximately $212,500.

The respondents argued this amount was excessive and not within their reasonable contemplation, suggesting a cap of $125,000.

The Court of Appeal found that while there was some overlap in the respondents' work, it was not considerable, and fixed the motion costs at $175,000 inclusive of HST and disbursements.

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 applicant, Clublink, owned the Glen Abbey Golf Course in Oakville and sought to redevelop it into a residential and mixed-use community.

The Town designated Glen Abbey as a cultural heritage property and passed five related by-laws, including a Cultural Heritage Landscape Conservation Plan By-law, authorizing the preparation of a conservation plan that required Clublink to seek Town approval for alterations to the golf course.

The application judge quashed all five by-laws and the conservation plan, finding them ultra vires, passed in bad faith, and void for vagueness.

The Court of Appeal allowed the appeal in part, upholding the validity of the five by-laws but quashing the conservation plan resolution on the basis that it effectively compelled Clublink to continue operating the golf course as a service, contrary to section 11(8)5 of the Municipal Act.