Eli Mogil

The parties entered into a contract in 1999 for the provision of market pricing data.

The appellant, a custodial bank, redistributed the data to its numerous affiliates without authorization.

The respondent discovered the breach in 2016 and sued.

The trial judge found the appellant breached the contract and awarded damages based on a rateable approach, but also awarded damages for sharing data with a specific affiliate.

On appeal, the Court of Appeal upheld the liability finding, concluding the contract only authorized the appellant itself to access the data.

The Court also upheld the trial judge's decision to change his unentered judgment and rejected the appellant's limitations defence.

On damages, the Court struck the award relating to the specific affiliate as double compensation but otherwise upheld the damages assessment, including an adverse inference drawn against the appellant for spoliation of evidence.

During a trial of an issue on damages arising from an application, the applicant objected to numerous pieces of viva voce evidence introduced by the respondents.

The court had previously directed that the damages trial proceed on the closed record as it existed when the application was initially argued.

The court applied a bright-line test, ruling that any evidence not actually found in the underlying application record was inadmissible to prevent trial by ambush.

The court sustained the majority of the applicant's objections, rejecting the respondents' arguments that the new evidence was merely a permissible amplification of the existing record or a necessary response to the applicant's expert.

The plaintiff brought a medical malpractice action against his family physician, alleging the physician failed to diagnose and treat a respiratory infection over several months.

The plaintiff was eventually hospitalized and required invasive surgery for streptococcal empyema, resulting in chronic pain and other ailments.

The court found that while the plaintiff did suffer from respiratory symptoms prior to his hospitalization, he failed to prove on a balance of probabilities that he reported these symptoms to the defendant during his monthly visits.

The court held that the defendant met the standard of care of a reasonable family physician and dismissed the action.

The defendant doctors brought a motion to compel the plaintiff to produce settlement documents and a pre-trial conference brief from two prior actions (a tort action and a statutory accident benefits action).

The plaintiff refused on the basis of settlement privilege.

The defendants argued that disclosure was necessary to prevent double recovery regarding a litigation loan that was claimed as damages in all three actions.

The court granted the motion, finding that the public interest in preventing overcompensation and facilitating meaningful settlement discussions in the current action outweighed the public interest in protecting the prior settlements, distinguishing the Supreme Court's decision in Sable Offshore.

The respondents in the underlying application (BNY) brought a motion to adjourn a damages trial until after the disposition of their pending appeal on liability, to adduce further evidence, and to settle the form of judgment on liability.

The court had previously found BNY liable for breach of contract and ordered a viva voce trial on damages due to the complexity of the record.

The court dismissed the motion, finding that an adjournment would effectively impose a bifurcation not agreed to by the parties, contrary to Rule 6.1.01, and that the balance of convenience favoured proceeding with the damages trial to allow a single appeal on both liability and damages.

The court also declined to allow new evidence or settle the form of judgment at this stage.

The applicant claimed damages of over $889 million for breach of two Data Services Agreements, alleging the respondents improperly shared market pricing data within their corporate group.

The respondents argued the agreements allowed sharing across their 'line of business' or brand.

The court found the respondents breached the agreements, as the contracts, factual matrix, and parties' conduct indicated the data was restricted to the named entities.

Defences of waiver, estoppel, and limitation periods were dismissed.

However, the court found the paper record insufficient to assess damages and directed the issue of damages to a trial.

Following the successful dismissal of a medical malpractice action on summary judgment due to the expiry of the limitation period, the defendants sought their costs.

The court awarded partial indemnity costs to the defendant doctor, finding the amounts claimed reasonable and proportionate.

The defendant clinic was awarded substantial indemnity costs from the date of its offer to settle, as the plaintiffs' continued opposition to the motion was unreasonable given their failure to produce an expert report.

The respondents brought a motion under Rule 39.02(2) for leave to file an additional affidavit following cross-examinations in an application concerning the alleged breach of market data licensing agreements.

The court applied the four-part test for leave, finding the objective factual evidence regarding corporate structure relevant and responsive to undertakings given during cross-examination.

However, the court struck out portions of the affidavit that contained impermissible subjective opinions on contract interpretation.

Leave was granted on terms, with costs awarded to the responding party on a substantial indemnity basis.

The defendants moved for summary judgment to dismiss the plaintiff's claims for breach of an independent contractor agreement and interference with business opportunities.

Alternatively, the defendants sought an order holding themselves liable but assessing damages based on the motion record.

The court dismissed the motion, finding genuine issues requiring a trial regarding whether the termination of the agreement was justified.

The court also rejected the defendants' alternative request, noting that Rule 20.01(3) does not contemplate a defendant moving for summary judgment in favour of the plaintiff to assess damages, and that partial summary judgment was inappropriate as the issues could not be readily bifurcated.

The plaintiff sued an imaging clinic and a radiologist for medical negligence, alleging a failure to diagnose breast cancer from mammograms and ultrasounds conducted in 2008 and 2009.

The court found no evidence that the clinic's imaging fell below the standard of care, noting that the plaintiff's dense breast tissue made imaging difficult but diagnostic.

The court also dismissed the claim against the radiologist, finding that his interpretation of the imaging was a reasonable exercise of clinical judgment and that he could not be judged retrospectively with the benefit of hindsight.

The action was dismissed.

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.

The plaintiffs brought a medical malpractice action alleging negligence and lack of informed consent arising from cosmetic breast augmentation and tummy tuck surgery.

The court excluded the plaintiffs’ expert evidence because the expert lacked familiarity with the Ontario standard of care, leaving no admissible evidence on the negligence claim.

The court therefore dismissed the standard of care allegations but proceeded on the issue of informed consent.

Considering the patient’s limited English proficiency, education, and the circumstances surrounding the consultations and consent forms, the court found that the physician failed to ensure the patient understood the material risks and consequences of the procedures.

The court held that a reasonable person in the patient’s circumstances would not have proceeded had adequate disclosure been made, and awarded damages.

Following the refusal of an interlocutory injunction sought by the landlord applicants to compel a hotel operator to continue operating a hotel under a particular brand, the court determined the issue of costs.

The applicants argued that an indemnity clause in a lease entitled them to full indemnity costs from a former tenant alleged to have breached the lease.

The court held that the indemnity clause did not permit the landlord to recover litigation costs from a prior tenant where the present tenant supported the motion and where the lease’s procedures regarding a change of operating name had not been followed.

Even if the clause applied, the court would decline to exercise its discretion to award costs to the applicants.

Costs were awarded instead to the successful respondent hotel operator.

The plaintiff brought a medical negligence action alleging a wrongful hysterectomy performed during a scheduled myomectomy procedure.

The physician converted the surgery intra-operatively to a hysterectomy after discovering adenomyosis, asserting that the patient had been informed of and accepted the risk.

The court found the physician failed to disclose the possibility of a non-emergency hysterectomy performed solely to relieve pain and bleeding symptoms, and that the patient had not consented to such a procedure.

Applying the informed consent test from Reibl v Hughes and Arndt v Smith, the court held that a reasonable person in the patient’s circumstances—who strongly desired pregnancy and had an upcoming fertility consultation—would not have accepted the risk.

Liability was established and the court awarded $75,000 in general damages for loss of reproductive capacity and related psychological harm.

The applicants sought an interlocutory injunction compelling a hotel operator to continue managing and branding a hotel under a particular brand pending determination of a permanent injunction application.

They argued the lease required continued operation of the hotel using the brand and associated operational infrastructure despite expiry of the hotel management agreement.

The court applied the RJR‑MacDonald test and held that the lease provisions did not clearly impose an obligation requiring the operator to continue providing the full operational benefits of the brand.

The alleged harm, primarily reduced participation rent and potential reputational impacts, was found to be quantifiable and compensable in damages.

The balance of convenience favoured the operator, which would otherwise be compelled to operate a business relationship it no longer wished to maintain.