Earl Asher Cherniak

The respondent was injured in a motor vehicle accident when the pickup truck he was a passenger in went through a red light and was struck by a transport truck going through a green light.

The jury found the driver of the pickup 95% liable and the driver of the transport truck 5% liable.

The appellants (the transport truck driver and owners) appealed, arguing the jury verdict was unreasonable, the trial judge misdirected the jury on causation, and there was improper cross-examination.

The Court of Appeal dismissed the appeal, finding evidence supported the jury's conclusion that a reasonably prudent driver should have been aware of the hazard, the jury charge was not in error when read as a whole, and the improper cross-examination was not serious enough to undermine trial fairness.

Following the dismissal of an action on cross-motions for summary judgment concerning contractual interpretation, the successful defendant sought costs exceeding $134,000 on a partial indemnity basis.

The court assessed the costs under Rule 57 of the Rules of Civil Procedure, considering proportionality, time spent, and the result achieved.

The judge reduced senior counsel’s claimed hourly rate and disallowed recovery for an expert where no expert report had been served under Tariff A. Applying the principles from appellate authorities governing fair and reasonable costs awards, the court fixed partial indemnity costs inclusive of HST.

The unsuccessful plaintiff was ordered to pay the adjusted costs within 30 days.

A law firm sought partial summary judgment seeking a declaration that it was entitled to invoice a bank for commissions relating to debtor payments received after the termination of a debt collection services agreement.

The bank brought a cross‑motion for summary judgment asserting that all amounts owed had already been paid under the agreement’s contingency‑based compensation structure.

The dispute turned on the interpretation of a termination clause allowing the firm to invoice for services performed up to the date of termination.

Applying established principles of contractual interpretation and considering the commercial context and factual matrix, the court held that compensation was limited to commissions on payments actually received before the termination date.

The plaintiff’s interpretation would have radically altered the agreed compensation methodology and was inconsistent with the contractual language and commercial sense.

Following a damages inquiry in which the defendants were awarded damages including legal costs, the defendants sought additional partial indemnity costs for a prior recusal motion.

The court determined that the costs associated with the recusal motion had already been included in the damages award for legal costs following review of the defendants’ docketed accounts.

Because those costs were already compensated in the earlier award, they could not be recovered again.

The court therefore dismissed the belated request for additional costs and declined to award further costs for the present dispute.

In a second appeal arising from insurance class proceedings concerning participating account transactions implemented in a 1997 life insurance acquisition, the appellants challenged the trial judge’s interpretation of the remedial formula previously crafted by the Court of Appeal.

The court held that the objective of the remedy was to unwind the transactions as of the effective date by restoring the participating accounts and shareholder accounts to the positions they would have occupied had the transactions not occurred, without conferring a windfall.

It concluded that amortization charges could not reduce the merger expense savings deduction, that the 6.91 percent return under paragraph 200(e) had to be calculated on an after-tax basis, and that paragraph 200(e) formed part of the deduction rather than an addition to the amount payable.

The appeal was allowed, the effective date remained December 31, 2011, and the amount repayable to the participating accounts was fixed at $51.6 million subject to updating.

The plaintiffs brought a motion to amend their statement of claim to add a corporate defendant, retain a placeholder defendant, and delete certain words.

The defendants brought a cross-motion to strike the statement of claim for disclosing no reasonable cause of action.

The court granted the plaintiffs' motion to amend, finding that the addition of the corporate defendant was a correction of a misnomer rather than the addition of a new party after the expiry of the limitation period.

The court dismissed the defendants' motion to strike, concluding it was not plain and obvious that the plaintiffs lacked capacity to sue or that their claims for breach of contract, breach of confidence, unjust enrichment, and breach of fiduciary duty would fail.

The appellant appealed a case management master's order compelling answers to various discovery questions in litigation arising from the crash of a Bombardier Global 5000 aircraft and a subsequent insurance coverage dispute.

The appellant argued the questions were irrelevant because the case turned solely on contractual interpretation of a pilot training clause and also asserted statutory privilege over information related to a Transportation Safety Board investigation.

The court held that the circumstances of the accident, pilot training, and statements provided to the Transportation Safety Board were relevant to issues raised in the pleadings, including whether simulator time satisfied the contractual pilot training requirement.

The court further held the statutory privilege argument was improperly raised for the first time on appeal and, in any event, the public interest in the proper administration of justice outweighed the claimed privilege.

The master's discovery orders were upheld.

Following the release of the court's decision on the appeal, the parties reached an agreement regarding costs.

The court ordered costs of the appeal to the respondent in the agreed amount of $21,000, inclusive of fees, disbursements, and all applicable taxes.

The appellant appealed a trial judge's finding of liability for a fire that destroyed his hotel and damaged adjacent buildings owned by the respondents.

The trial judge had accepted the respondents' expert evidence that the fire was caused by a defective boiler and inadequate clearance of its exhaust ventilation duct.

On appeal, the appellant argued the trial judge provided insufficient reasons and failed to articulate the standard of care.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons adequately explained his resolution of the conflicting expert evidence and his conclusion that the appellant's failure to maintain the boiler breached the standard of care and caused the fire.

The appellants successfully appealed a motion judge's decision limiting the scope of their class proceedings based on the Limitations Act.

The Divisional Court, however, refused to award the appellants their costs of the appeal, finding success was divided, and remitted the costs issue to the motion judge.

The Court of Appeal allowed the appeal on costs, holding that the Divisional Court erred in principle by mischaracterizing the appellants' success and by failing to apply the general rule that the costs of a successful appeal should be awarded to the appellant and not depend on the outcome of a rehearing.

The appellant appealed a motion judge's decision granting carriage of a class action against Armtec Infrastructure Inc. to a competing group of plaintiffs and staying his action.

The Divisional Court reviewed the test for determining carriage motions in class actions, confirming that the motion judge correctly identified and applied the test from Setterington.

The court held that the motion judge's qualitative analysis of the competing actions and his ultimate decision to grant carriage to the competing action was an exercise of discretion entitled to deference.

The appeal was dismissed.

Following an appeal where one appellant was successful and the other unsuccessful, the appellants brought a motion to readdress costs.

Counsel for the appellants had previously agreed to a costs arrangement but later realized he made an error regarding the successful appellant's costs.

The Court of Appeal allowed the correction in fairness to the successful appellant and apportioned the trial and appeal costs accordingly.

In a class action carriage dispute, the appellant was granted leave to appeal on only two specific issues.

The appellant subsequently filed a notice of appeal and factum that included arguments on issues for which leave had been denied.

The moving parties brought a motion to strike those portions of the appellant's materials.

The court held that an appellant cannot raise issues for which leave to appeal was explicitly refused, as doing so would render the leave requirement meaningless.

The court ordered the appellant to file a revised notice of appeal and factum limited to the permitted grounds.

The appellant appealed a decision interpreting a varied trust deed.

The trust had been converted into a percentage trust (unitrust) to allow the trustee to invest for maximum returns.

Due to market downturns, the trustee had to sell capital assets to meet the mandatory minimum percentage distributions to the income beneficiaries, depleting the trust's capital.

The application judge found that the trust deed's terms made the percentage payments mandatory and ousted the trustee's duty to maintain an even hand between income and capital beneficiaries regarding distributions.

The Court of Appeal dismissed the appeal, holding that the application judge correctly interpreted the trust deed based on its clear language and the surrounding factual matrix, including the prior court approval and tax rulings.

Two sets of plaintiffs commenced competing class proceedings against the defendants.

The motion judge granted carriage to the respondents and stayed the appellant's action.

The appellant appealed the carriage order to the Court of Appeal.

The Court of Appeal held that it lacked jurisdiction to hear the appeal because a carriage order is interlocutory, not final.

The stay of the unsuccessful plaintiff's action does not terminate their claim, as they may still opt out or participate in the certified class action.

Therefore, the appeal lies to the Divisional Court with leave.

In a CCAA proceeding, the Applicants (Hollinger Inc. et al.) sought approval of settlement agreements with their former auditors (KPMG) and lawyers (Torys).

The Non-Settling Defendants, including Conrad Black and David Radler, opposed the settlements, arguing the court lacked jurisdiction and that the included third-party releases and bar orders would deprive them of procedural rights to discovery.

The court held it had jurisdiction under the CCAA to manage litigation as a corporate asset.

The court approved the Pierringer-style settlements, finding that the procedural rights of the Non-Settling Defendants could be adequately protected through active case management and the application of the principle of proportionality in discovery.

The appellant appealed a carriage order made by the Superior Court of Justice in a class proceeding.

The Court of Appeal concluded that the carriage order is an interlocutory order, meaning the court lacked jurisdiction to hear the appeal.

The appeal was dismissed, with the court noting that the proper route is to the Divisional Court by way of leave to appeal.

In six Ontario libel actions tied to statements posted by a U.S. company and later republished in Ontario newspapers, the appellants argued Ontario lacked jurisdiction or should defer to Illinois.

The Court held that defamation was presumptively connected to Ontario because publication occurred there through reading, downloading, and republication.

It concluded the appellants did not rebut jurisdiction and did not prove Illinois was clearly the more appropriate forum under forum non conveniens.

The appeal was dismissed with costs.

The applicants challenged a City of Toronto by-law imposing an annual tax on third-party signs, arguing it was an ultra vires indirect tax, discriminatory, and that existing signs were grandfathered under the City of Toronto Act.

The application judge upheld the by-law but found existing signs were grandfathered and granted a sealing order over the applicants' financial information.

The Court of Appeal dismissed the applicants' appeals, finding the tax was direct and not discriminatory.

The Court allowed the City's cross-appeal, holding that the grandfathering provision applies only to regulatory by-laws, not taxing by-laws, and that the sealing order was unjustified under the Dagenais/Mentuck test.

Two competing law firms brought motions for carriage of a proposed securities class action against Armtec Infrastructure Inc. and its directors and underwriters, alleging misrepresentations in a prospectus and press release.

The court evaluated the competing actions based on the nature and scope of the causes of action, the proposed class definitions, the named defendants, and the representative plaintiffs.

The court granted carriage to the Simmonds plaintiffs, finding their approach to the class definition and damages to be simpler and more cohesive, and their representative plaintiffs to possess significant business acumen.

The competing Locking action was stayed.