Eli S. Lederman

The appellant physician in a medical malpractice action appealed a motion judge's decision denying leave to file late-served causation and damages expert reports under Rule 53.08.

The motion judge had applied a strict conjunctive test, finding no reasonable explanation for the delay despite acknowledging a lack of prejudice.

The Divisional Court allowed the appeal, holding that the motion judge erred by failing to apply a balanced approach that considers the overall interests of justice, as established in recent jurisprudence.

The Court found that the delay was not tactical, did not prejudice the respondents or delay the trial, and that denying leave would disproportionately prejudice the appellant's ability to defend the action on its merits.

The moving parties brought motions to quash appeals from an order authorizing a court-appointed Sales Officer to enter into agreements to separate joint venture interests in real estate projects as part of a corporate wind-up.

The Court of Appeal granted the motions to quash, finding that the order was interlocutory because it was a step in implementing the wind-up and sale process, not a final determination of substantive rights.

Furthermore, the Court held that the order was made pursuant to the Business Corporations Act, meaning any appeal lies to the Divisional Court.

The applicants sought to appeal or set aside a Partial Final Award of an arbitrator that granted the respondents a 50% constructive trust interest in a commercial property adjacent to a jointly owned shopping centre.

The arbitrator had found an ad hoc fiduciary duty despite the Co-Tenancy Agreement explicitly excluding partnership and fiduciary obligations.

The Superior Court of Justice granted leave to appeal, finding that the arbitration agreement did not preclude appeals on questions of law.

The court set aside the relevant portions of the award, holding that the arbitrator committed extricable errors of law by ignoring the unambiguous exclusionary language of the agreement and exceeded his jurisdiction by deciding an unpleaded claim for an ad hoc fiduciary duty.

The moving parties brought a motion for leave to appeal a January 30, 2026 decision.

The Divisional Court granted the motion for leave to appeal without costs and ordered that the appeal be expedited, directing the parties to attend a case management teleconference to set a schedule.

The defendant physician in a medical malpractice action sought an extension under rr. 53.03(4) and 53.08(1) of the Rules of Civil Procedure to serve three late expert reports.

The court granted the motion with respect to one report, finding that the unexpected death of the originally retained expert constituted a reasonable explanation for the delay.

However, the court denied the motion for the remaining two reports, holding that trial counsel's admitted inattentiveness to the file and deliberate choice to prioritize other matters did not constitute a reasonable explanation, and that the conjunctive test under the amended r. 53.08(1) required dismissal absent satisfaction of that threshold.

The appellant City of Hamilton appealed a trial judgment finding it and ArcelorMittal Dofasco Inc. (AMD) jointly and severally liable for damages arising from periodic flooding of the respondent National Steel Car Limited's industrial property caused by wastewater discharge into a clogged drainage channel.

The trial judge awarded compensatory damages of approximately $5.3 million (apportioned equally between the defendants), punitive damages of $400,000 against the City and $500,000 against AMD, and granted a mandatory injunction requiring remediation and maintenance of the channel.

The City appealed on four grounds: (1) the equal apportionment of liability; (2) failure to find mitigation by National; (3) the punitive damages award; and (4) the terms of the injunction.

The Court of Appeal dismissed the appeal except for a clarification to the injunction language.

The moving parties brought motions for leave to appeal a decision of Conway J. dated April 4, 2025.

The Divisional Court dismissed the motions for leave to appeal and awarded costs of $10,000 to each of the responding parties, Sheldon Libfeld and Jay Libfeld.

The Plaintiffs brought a motion to reconsider a previous certification ruling that dismissed the action against Maple Leaf Foods Inc. (MLF) in a class action alleging price-fixing.

The Plaintiffs sought to certify the action against MLF, presenting new evidence including a Second Information to Obtain (ITO), MLF's annual reports, Canada Bread's Agreed Statement of Facts (ASF) from a criminal proceeding, and emails from Canada Bread's files.

MLF opposed the motion and brought cross-motions to exclude the new evidence and strike the Plaintiffs' amended claims.

The court dismissed the Plaintiffs' motion, finding that the 'new evidence' was either not new, inadmissible hearsay, or did not substantively alter the lack of a viable cause of action against MLF.

The court emphasized the principle of finality in litigation, stating that a certification dismissal for lack of cause of action is a final order and cannot be revisited without meeting a strict test for new evidence (Sagaz test), which was not met here.

The court also granted MLF's motion to exclude the evidence and strike the amended statements of claim against MLF.

This decision addresses an evidentiary dispute during a trial regarding the admissibility of post-assessment medical reports through a defendant fact witness, Dr. McPherson.

The defendants sought to introduce reports created after Dr. McPherson's last assessment of the plaintiff, Jeremy Veran, to demonstrate improvement in symptoms.

The plaintiffs objected, arguing Dr. McPherson had not seen these documents and was not an expert witness.

The court ruled that documents not seen or received by Dr. McPherson, and not directly relevant to his care of the plaintiff, could not be introduced through him as a fact witness, even if they were part of the joint book of documents.

The defendants brought a motion to address two issues: the admissibility of opinions in two plaintiff expert reports (Miyanji and Levin) and the admissibility of evidence from five lay witnesses.

The court ruled that portions of the Miyanji and Levin reports that did not respond to specific "Defence Expert Reports" or introduced new standard of care issues were inadmissible due to late service and lack of reasonable explanation.

The motion to exclude the lay witnesses was dismissed as premature, with the court stating that the admissibility of their evidence, particularly any opinion evidence, should be assessed at the time it is tendered at trial.

The plaintiffs brought a motion seeking several orders before trial, including dismissal of claims against certain defendants, leave to amend their statement of claim, preliminary determination of jury questions, and exclusion of expert evidence.

The court granted the dismissal of claims against the "Released Defendants" without costs, as it was previously agreed upon.

Leave was granted to file a Fresh as Amended Statement of Claim, as the proposed amendments were extensive and did not remove admissions.

The court also determined the format for jury questions, largely adopting the plaintiffs' approach for damages and requiring explanations for answers, emphasizing standard of care and "but for" causation.

The issue of expert evidence was adjourned to a later date.

The plaintiffs brought a motion to preclude the defendants from introducing evidence from fifteen expert reports served late in a medical malpractice action.

The court considered the admissibility under Rule 53.08, assessing whether there was a reasonable explanation for the late service and if granting leave would cause irreparable prejudice or undue delay.

The court allowed some reports as supplementary or responding reports, finding a general reasonable explanation for delay due to discovery issues and prior party understanding.

However, it excluded a vocational report that introduced new scenarios without prior notice and a neuropsychological report, reiterating a previous ruling that no neuropsychological impairment issue was pleaded or supported by evidence, and its introduction would cause significant prejudice and necessitate trial adjournment.

The respondents entered into a settlement agreement with Staff of the Ontario Securities Commission regarding allegations of unregistered trading, illegal distribution, and making misleading statements in connection with the promotion and sale of cryptocurrency tokens (Axia Coin).

The respondents admitted to breaching multiple provisions of the Securities Act and agreed to pay administrative penalties, disgorgement, and costs, as well as to permanent market bans.

The Capital Markets Tribunal approved the settlement agreement, finding it to be in the public interest and within a range of reasonable outcomes.

The defendants (appellants) brought a motion for leave to appeal the order of W.D. Newton J. dated August 28, 2023.

The Divisional Court dismissed the motion for leave to appeal.

As the plaintiffs (respondents) did not file a Bill of Costs, the court made no order as to costs.

The moving parties brought motions for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motions for leave to appeal without costs.

The appellant appealed a decision of the Capital Markets Tribunal finding that he engaged in fraudulent conduct under s. 126.1 of the Securities Act by approving unauthorized transfers of cash between investment funds to pay distributions and dealer fees.

The appellant argued the Panel erred in its factual findings, its rejection of his due diligence and reliance on legal advice defences, and its imposition of sanctions.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Panel's factual findings or legal analysis, but reduced the disgorgement order from $51,361 to $45,298 based on a concession by the respondent regarding the calculation methodology.

Canada Bread Company Limited pleaded guilty to four counts of price-fixing under the Competition Act.

The offences involved agreements with Weston Food Canada Inc. to increase wholesale fresh commercial bread prices, impacting millions of consumers.

The court accepted a joint submission for a total fine of $50 million, allocated across the four counts.

The decision considered aggravating factors such as high planning and coordination, and mitigating factors including the company's cooperation with the Competition Bureau, change in ownership, and implementation of a compliance program.

The court emphasized denunciation and deterrence as primary sentencing objectives, ensuring the fine was significant enough to eliminate profit and not merely a "cost of doing business."

The Court of Appeal heard motions to quash an appeal from a trial judge's order approving a sale process for a family business.

The court found the approval order to be interlocutory, serving as a mechanism to implement remedies from the trial judgment, and thus not determining substantive issues.

The correct appeal route for such an order is to the Divisional Court with leave.

Consequently, the motions to quash the appeal were allowed, and the appellants were granted an extension to seek leave to appeal to the Divisional Court.

The plaintiff, Bluemoon Capital Ltd., sought court approval under s. 29 of the Class Proceedings Act, 1992, to discontinue a proposed class action against the defendants on a with-prejudice and without-costs basis.

The action, alleging secondary and primary market misrepresentation under the Securities Act, was commenced to preserve claims while a Norwich application was pending.

Following the denial of the Norwich application by Justice Pattillo and its confirmation on appeal, the plaintiff determined the action was no longer viable.

The court approved the discontinuance, finding it was for a proper purpose and would not prejudice putative class members who were unaware of the action.

The plaintiff's request to suspend the discontinuance for 60 days to allow for potential class member action was denied, as no purpose would be served by giving notice or suspending the discontinuance.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning a share purchase agreement with earn-out milestones.

The appellants, former shareholders, alleged breach of contract and the duty of good faith by the respondent's predecessor, Origin House, particularly regarding a delayed transaction closing date impacting milestone payments.

The respondent cross-appealed the lower court's finding of a breach of the duty of honest performance.

The Court of Appeal dismissed the appeal, affirming that a finding of breach of the duty of honest performance does not create a legal presumption of loss without an evidentiary foundation of lost opportunity.

The court allowed the cross-appeal, finding a palpable and overriding error in the lower court's determination that the appellants were unaware of the delayed closing date, thereby setting aside the finding of a breach of the duty of honest performance.