Elizabeth Bowker

The defendants, Toronto Hydro and the City of Toronto, sought leave to issue third-party claims against the plaintiffs (a building owner and two tenants) and various former owners and property managers for contribution and indemnity following a fire in a hydro vault.

The plaintiffs opposed the motions, arguing that covenants to insure in their leases shielded them from liability to each other, rendering the third-party claims legally untenable under the Supreme Court's decisions in T. Eaton Co. and Giffels.

The court granted leave in part, allowing claims against parties in capacities not shielded by the insurance covenants (e.g., former owners, property managers), but dismissed the motions regarding claims against the landlord and tenant in their capacities governed by the leases.

The court also rejected the argument that covenants to insure should be treated as exclusion clauses subject to public policy exceptions.

The plaintiff moved for certification of a class action on behalf of debenture holders of Discovery Air Inc., alleging oppression by the defendants in a series of transactions that transferred Discovery's primary asset to Clairvest at a material discount.

Clairvest consented to certification but disputed the common issues and sought discovery directions, while the remaining defendants argued the statement of claim disclosed no cause of action against them.

The court found the pleadings sufficiently detailed to disclose a cause of action against the individual directors and the Top Aces entities.

The court certified the action, adopted a broad definition of the common issues with some additions proposed by Clairvest regarding causation and reasonable expectations, and declined to order non-party production or expanded discovery at this early stage.

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.

At an initial case conference for a proposed class action, counsel agreed on a timetable leading up to the certification motion.

The court endorsed the agreed schedule, setting the certification motion for September 9, 2021.

The plaintiff, a debentureholder, sought to bring a class action for oppression against certain shareholders, directors, and officers of Discovery Air Inc. The defendants argued the plaintiff lacked standing due to a 'no-action clause' in the trust indenture, which they claimed required trustee authority or satisfaction of specific preconditions.

The court found that the trust indenture, when read holistically, did not preclude the plaintiff's direct action.

Alternatively, the court determined that the plaintiff had met the preconditions, including the 25% debentureholder support and a reasonable offer of indemnity, despite the trustee's commercially unreasonable demands.

The plaintiff's motion was granted, allowing the oppression action to proceed.

The appellant insurer appealed a decision finding it had a duty to defend the respondent kickboxing academy in an action commenced by a student.

The student alleged she was sexually assaulted by the respondent's co-owner on a return flight from a competition, and claimed the respondent was negligent in failing to supervise her.

The commercial general liability policy excluded claims arising directly or indirectly from abuse.

The Court of Appeal allowed the appeal, finding that the only claim in the statement of claim arose from the sexual abuse incident, which was clearly excluded from coverage under the policy.

The insurer had no duty to defend.

The appellant, Global Work & Travel Co. Inc., appealed a motion judge's decision that dismissed its motion to dismiss or stay an action based on lack of jurisdiction simpliciter and forum non conveniens.

The action was brought by the respondents (plaintiffs) following a tragic motor scooter accident in Thailand that resulted in the death of one sister and serious injury to another, who had travelled there through the appellant's "Teach in Thailand" program.

The Court of Appeal upheld the motion judge's finding of a real and substantial connection to Ontario, particularly regarding claims of negligent misrepresentation and negligence committed in Ontario, and affirmed the application of the "good arguable case" test.

The appeal was dismissed.

In a group of six child protection appeals, the appellant J.B. brought a motion to reconstitute the panel, seeking to replace one of the judges due to her involvement in a prior unanimous decision that had reinstated a no-access order against J.B. The appellant argued for a reasonable apprehension of bias.

The Court of Appeal denied the motion, reaffirming the strong presumption of judicial impartiality and the high burden on the party alleging bias.

The court held that a judge's prior ruling against a party on a legal issue in a different case does not create a reasonable apprehension of bias for a new case involving different legal issues, even if the parties are the same.

This appeal concerned the liability of Children's Aid Societies (CAS) and the Ontario government for damages arising from flawed hair follicle drug and alcohol test results from the Motherisk Drug Testing Laboratory (MDTL) used in child protection proceedings.

Family members (parents and siblings) of children apprehended by CASs sued for negligence, negligent investigation/supervision, intentional infliction of mental distress, bad faith, breach of fiduciary duty, misfeasance in public office, and Charter breaches.

The motions judge dismissed these claims, finding that CASs and Ontario did not owe a private law duty of care to parents or family members, as their primary duty is to the child's best interests, creating an untenable conflict of interest.

The Court of Appeal upheld the motions judge's decision, affirming that the CAS's duty is solely to the child, and Ontario's duties are general public duties, not private law duties to individuals in child protection matters or related to laboratory oversight.

The court also rejected claims of bad faith and Charter breaches as being disguised negligence claims, and dismissed claims for breach of fiduciary duty and s. 35(1) of the Constitution Act, 1982, finding these duties are owed to the Indigenous child, not the Indigenous parent.

The representative plaintiff brought a motion for consent certification of a class action for settlement purposes, approval of the settlement agreement, approval of class counsel fees and disbursements, approval of a representative plaintiff honorarium, and discontinuance of the action for online-only teachers.

The class action alleged misclassification of teachers as independent contractors, leading to unpaid Employment Standards Act entitlements.

The court approved all requested relief, finding the settlement fair and reasonable, the cy-près distribution appropriate, and the fees and honorarium justified given the risks and efforts involved.

The appellant property manager appealed the dismissal of its summary judgment motion, arguing that the respondent condominium corporation's action for construction defects was a nullity because it failed to provide owners with notice under s. 23(2) of the Condominium Act, 1998 before issuing a notice of action.

The Court of Appeal dismissed the appeal, taking the rare step of overruling its own previous decision in Medhurst.

The Court held that applying the modern approach to statutory interpretation, non-compliance with the notice provision does not render an action a nullity, as doing so would undermine the consumer protection purpose of the Act and cause injustice to the condominium owners the provision was designed to protect.

The applicant kickboxing gym sought a declaration that its insurer had a duty to defend and indemnify it in an underlying action.

The underlying action alleged that an employee of the gym sexually assaulted a plaintiff, and that the gym was liable for negligent supervision.

The insurer denied coverage based on an abuse exclusion clause.

The court found that while the abuse exclusion applied to negligence arising directly from the assault, the pleadings also alleged broader negligent supervision that could fall outside the exclusion.

Applying the principle that the mere possibility of coverage triggers the duty to defend, the court ordered the insurer to defend the gym, but held that the duty to indemnify was premature.

Following the dismissal of the defendant's motion to stay or dismiss the action for lack of jurisdiction, the successful plaintiffs sought costs of $51,474.50 on a partial indemnity basis.

The defendant did not contest entitlement but disputed the quantum, arguing the hourly rates were high and time was spent on unnecessary steps.

The court found the hourly rates reasonable and declined to conduct a detailed post-mortem of the litigation steps.

Noting the amount sought was comparable to what the defendant would have claimed, the court awarded the plaintiffs costs in the requested amount of $51,474.50.

The defendant, Global Work & Travel Co. Inc., brought a motion to dismiss or stay an action commenced by the plaintiffs (Nora Vahle, Marija Vahle's estate, and her parents) in Ontario.

The plaintiffs sued for damages arising from negligent misrepresentation, negligence, breach of contract, and breach of trust after Nora and Marija were involved in a fatal motor scooter accident in Thailand while participating in the defendant's "Teach in Thailand" program.

The motion challenged the Ontario court's jurisdiction simpliciter and argued that Ontario was not the convenient forum (forum non conveniens).

The court found a real and substantial connection to Ontario based on the tort of negligent misrepresentation being committed where representations were received and relied upon (Ontario), and the defendant carrying on business in Ontario through e-commerce and placing clients in Ontario.

The presumption of jurisdiction was not rebutted.

The court also determined that the defendant failed to demonstrate that Thailand was clearly a more appropriate forum, considering factors such as the parties' location in Canada, the contract's Canadian law clause, and potential juridical disadvantage for the plaintiffs in Thailand.

The motion was dismissed.

Following a 38-day trial where the plaintiff's claim was dismissed, the successful defendant sought costs of over $2.2 million on a partial indemnity basis, but argued for substantial indemnity costs from the date the plaintiff amended its pleadings to allege bias and conspiracy.

The court denied substantial indemnity costs, finding the plaintiff's allegations were not made recklessly or without evidentiary foundation.

The court upheld the defendant's significant e-discovery disbursements as reasonable but ordered the defendant to produce redacted dockets for the plaintiff's review before finalizing the fee award.

The defendant property manager brought a motion for summary judgment to dismiss the plaintiff condominium corporation's action as a nullity.

The defendant argued that the plaintiff failed to comply with the notice requirements under s. 23(2) of the Condominium Act, 1998 before commencing the action.

The court dismissed the motion, finding that the action against the property manager for breach of contract and negligence was not the type of action caught by s. 23(1) of the Act, and therefore the notice requirements did not apply.

Furthermore, the court held that the action commenced with the filing of the Statement of Claim, not the Notice of Action, and that the plaintiff had provided sufficient notice to the owners prior to filing the Statement of Claim.

The court heard multiple motions to strike claims against Her Majesty the Queen in Right of Ontario (HMQ), various Children's Aid Societies (CAS), and an expert witness (Julia Klein).

These claims arose from the use of unreliable hair follicle drug testing by the Motherisk Drug Testing Laboratory in child welfare investigations and proceedings, leading to children's apprehension and, in some cases, Crown wardship.

The plaintiffs alleged negligence, breach of Charter rights, bad faith, and other torts against the defendants.

The court granted all motions to strike, finding that HMQ and the CAS did not owe a private law duty of care to the parents or children in their supervisory or investigative roles, as their paramount duty was to the child's best interests.

Many claims were also deemed impermissible collateral attacks on existing court orders.

The claim against the expert witness, Julia Klein, was struck due to witness immunity and a lack of causal connection between her testimony and the alleged damages.

The plaintiff, a construction company, sued the defendant municipality after being disqualified from a Request for Proposals (RFP) process for a City Hall expansion.

The plaintiff alleged that the municipality acted in bad faith and with bias when it disqualified the plaintiff for refusing to sign a confidentiality agreement and for communicating directly with City Council.

The Superior Court of Justice dismissed the action, finding that the plaintiff had breached the clear terms of the RFP and that the municipality's decision to disqualify the plaintiff was fair, made in good faith, and based on the advice of an independent fairness advisor.

The court also held that even if the municipality had breached the RFP, the plaintiff would only be entitled to reliance damages, not expectation damages for lost profits.

The City of Toronto brought a special case motion to determine the scope of contribution and indemnity claims between Toronto Hydro-Electric Systems Ltd. and Gonte Construction Limited following a bilateral settlement between Toronto Hydro and the City.

The court addressed three questions: (1) whether Toronto Hydro's third-party claim for contribution and indemnity against Gonte in tort was limited to Gonte's several share of liability under the Negligence Act; (2) whether Gonte could claim contribution and indemnity from the City if Toronto Hydro could claim the full amount against Gonte in tort (this question was agreed upon by the parties); and (3) whether Gonte could claim common law contribution and indemnity from the City if found liable in contract.

The court ruled that Toronto Hydro's tort claim against Gonte is limited to Gonte's several share of liability, but Gonte can pursue a common law claim for contribution and indemnity from the City if found liable in contract, given the developing nature of the law in mixed contract and tort cases.

This appeal concerns a class action brought by Mr. Submarine Ltd. franchisees against Maple Leaf Foods Inc. following a 2008 listeria contamination outbreak.

The franchisees claimed damages for economic losses arising from reputational harm allegedly caused by their public association with Maple Leaf during the recall.

The motion judge found that Maple Leaf owed a duty of care to the franchisees both in relation to the supply of fit products and regarding representations about product safety.

The Court of Appeal allowed the appeal, finding that while Maple Leaf may owe a duty to supply safe products, this duty is owed to end consumers, not franchisees, and does not extend to protecting against reputational harm or pure economic losses.

The court also found that Maple Leaf's undertaking regarding product safety did not encompass protection of the franchisees' reputational interests.