Erin D. Farrell

The appellant appealed a judgment that found his refusal to transfer 33.15 shares in Futecan Canada Inc. to the respondent was oppressive and ordered the share transfer.

The central issue was the agreed-upon number of shares to be transferred.

The Court of Appeal found ample non-hearsay documentary evidence supported the application judge's finding that 33.15 shares were to be transferred, which would give the respondent a controlling interest and made commercial sense.

The appeal was dismissed, affirming the original judgment.

The appellants, a geneticist and his corporation, appealed a trial judgment dismissing their defamation action against the respondents for publishing an article in New Scientist magazine criticizing their prenatal paternity test as unreliable.

The trial judge found the respondents established the defences of justification, fair comment, responsible communication, and qualified privilege.

On appeal, the appellants abandoned their substantive grounds and raised a new allegation of reasonable apprehension of bias based on the trial judge's conduct and reasons.

The Court of Appeal dismissed the appeal, finding the bias allegation was raised tactically and lacked merit.

The defendant, Ikaria, brought a motion for security for costs.

The plaintiff agreed to post security, leaving only the quantum in dispute.

The defendant sought $244,636.81 up to mediation, while the plaintiff proposed $40,000.

The court found the defendant's estimate unreasonable and disproportionate, particularly regarding past motions, expert fees, and discovery attendance.

The court ordered the plaintiff to post security for costs in the all-inclusive amount of $100,000, payable in three tranches.

No costs were awarded for the motion.

The defendants were successful in defending a defamation action brought by the plaintiffs regarding a scientific controversy.

The defendants sought costs of over $2.2 million, while the plaintiffs proposed approximately $236,000.

The court noted the defendants presented a comprehensive and formidable defence, whereas the plaintiffs' case was not robust and relied on a failed strategy.

Applying the principles for fixing costs, the court balanced the need to indemnify the successful, blameless defendants against the risk of deterring future litigants.

The court fixed the defendants' costs at $1,478,766.64, inclusive of fees, disbursements, and HST.

The plaintiffs, a genetic testing company and its director, sued the defendants for defamation over a magazine article criticizing their non-invasive prenatal paternity test.

The article alleged the test was dangerous, unreliable, and prone to error.

The court found the article was defamatory but dismissed the action, holding that the defendants successfully established the defences of justification, qualified privilege, fair comment, and responsible communication.

The court found the plaintiffs failed to properly validate their test according to accepted scientific methodology, rendering the test unreliable and the article's claims substantially true.

In a defamation action concerning an article criticizing the plaintiffs' prenatal paternity test, the defendants brought a motion to amend their Statement of Defence after the close of evidence at trial.

The plaintiffs opposed the motion, arguing that the amendment introduced new allegations regarding the validity of the underlying science, which would cause non-compensable prejudice.

The court reviewed the existing pleadings and expert reports, concluding that the validity of the science was already a live issue and the amendment merely clarified existing allegations.

The court granted the motion to amend, finding no prejudice to the plaintiffs.

The appellants appealed a summary judgment dismissal of their negligence claim against the City of Toronto arising from a fall on a sidewalk.

The appellant sustained injuries when her foot landed on a missing paving stone on a narrow strip adjacent to the concrete sidewalk.

The motion judge found that the City had availed itself of the statutory defences under section 42(3) of the City of Toronto Act, 2006, having undertaken reasonable steps to prevent the state of non-repair and having no knowledge of the defect.

The Court of Appeal upheld the dismissal and denied the motion for leave to appeal the costs award.

The appellants appealed Tarion's decision to deny warranty claims for their new home, primarily concerning HVAC issues and condensation in a third-floor bedroom.

The Tribunal found that the HVAC system met Ontario Building Code standards and that the condensation was caused by the homeowners' failure to adequately ventilate the home, which is excluded from warranty coverage.

Claims for a missing grease screen, loose shower heads, and secondary damage to a floor were also dismissed.

The Tribunal ordered Tarion to pay $350 in compensation for minor warranted items, including relocating a thermostat and humidistats.

The appellant physician appealed decisions of the Discipline Committee of the College of Physicians and Surgeons finding her guilty of professional misconduct and incompetence following the death of a patient who underwent high-volume liposuction.

The Committee found she breached standards of practice regarding extraction volumes, informed consent, and post-operative care, and that her website advertising violated regulations banning testimonials and superlatives.

The Divisional Court dismissed the appeal, upholding the Committee's findings on the standard of practice, its evidentiary rulings, and its conclusion that the advertising ban was a justified limit on freedom of expression under s. 1 of the Charter.

The penalty restricting her practice to acting as a surgical assistant in a hospital was also upheld as reasonable.

The moving party, a physician whose certificate of registration was suspended for two years followed by indefinite restrictions after a discipline committee found her incompetent following a patient's death during liposuction, brought a motion to stay the penalty order pending her appeal.

She sought to perform non-surgical cosmetic procedures in the interim.

The Divisional Court applied the RJR MacDonald test and dismissed the motion.

While the appeal raised a serious issue, the moving party failed to establish irreparable harm, as financial loss alone is insufficient.

Furthermore, the balance of convenience favoured the respondent, as the court found that allowing the moving party to perform or supervise controlled acts would pose a risk to public safety and undermine public confidence in the medical profession's regulatory process.

The moving defendant sought security for costs under Rule 56.01(1)(a) of the Rules of Civil Procedure on the basis that the plaintiff was ordinarily resident outside Ontario and had no assets within the jurisdiction.

The plaintiff opposed the motion, asserting impecuniosity and arguing that an order for security would prevent the claim from proceeding.

The court granted leave to bring the motion despite it being brought late after the action had been set down for trial.

However, the court accepted the evidence that the plaintiff lacked financial resources and would be unable to post security.

Applying the principle that meritorious claims should not be prevented from proceeding due to poverty unless plainly devoid of merit, the court dismissed the motion.

The applicant sought production of the insurer's entire accident benefits file, including post-mediation documents and communications with counsel, arguing the insurer waived privilege by abandoning its position on an insurer examination.

The arbitrator found no factual basis for waiver of solicitor-client privilege.

However, due to concerns about the insurer's compliance with a prior production order and its refusal to particularize claims of privilege, the arbitrator ordered the insurer to serve a detailed Affidavit of Documents for both the pre-mediation and post-mediation periods.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits for a Kenko Sleep System (a magnetic mattress and pillow) costing $1,607.70.

The insurer denied the claim, arguing the device was experimental and not a medical device.

The arbitrator found that while the system qualified as a medical device under the Schedule, the applicant failed to prove it was a reasonable and necessary treatment for her accident-related impairment.

The medical evidence did not support the therapeutic value of the device for her soft tissue injuries.

The application for arbitration was dismissed, and no expenses were awarded.