Evan Rankin

This five-judge appeal reconsidered the common law governing non-disclosure of partial settlement agreements in multi-party civil litigation.

The court held that the prior rule mandating an automatic finding of abuse of process and an automatic stay, without proof of prejudice or regard to proportionality, was wrongly decided and should be overruled.

The proper approach requires a contextual and discretionary abuse of process analysis focused on unfairness, prejudice, oppression, harm to the administration of justice, and a proportionate remedy, with r. 49.14 of the Rules of Civil Procedure reinforcing that framework.

Applying that approach, the court allowed two appeals and remitted those matters, while dismissing two others where the record was sufficient to determine the result.

The applicant sought an extension of time to appeal a motion judge's decision striking her amended statement of claim without leave to amend.

The claim alleged breach of confidence arising from the disclosure of a settlement email to the Crown, which led to the withdrawal of criminal sexual assault charges against her former business partner.

The motion judge found the email contained unambiguous impropriety as it offered to withdraw criminal charges in exchange for money, was not protected by settlement privilege, and caused no compensable harm.

The Court of Appeal denied the extension of time, finding no merit to the proposed appeal and no reversible error in the motion judge's analysis.

The applicants brought preliminary objections to the admissibility of two pieces of evidence in an application proceeding concerning contingent fee recognition.

The respondent law firm and lawyers sought recognition of contingent fees claimed under a Partial Contingency Agreement dated June 17, 2011.

The court ruled on the admissibility of an expert report from a former Federal Court judge and a third affidavit from one of the respondent lawyers.

The court found that expert evidence on the complexity of the case, risks involved, and results achieved was not necessary, as these matters were within the experience and knowledge of the court and were adequately addressed through extensive evidence and comprehensive legal submissions.

The court also found the expert lacked the requisite qualifications to opine on the specific topics.

The court reserved judgment on the admissibility of the third affidavit pending further consideration of its relevance.

The plaintiff sought summary judgment against the defendant O3 Industries LLC to enforce payment of a $3 million debt owed by Antamex Industries ULC under an asset purchase agreement.

O3 had provided a guarantee of Antamex's obligations.

O3 raised three defences: (1) the guarantee did not obligate O3 to pay the purchase price; (2) Oldcastle breached representations regarding equipment condition and permits (the equipment defence); and (3) Oldcastle failed to transfer or misrepresented ownership of accounts receivable from the Dalton Project (the Dalton Project defence).

The court granted summary judgment in part, finding the guarantee clearly bound O3 and that the equipment defence was barred by issue estoppel from a prior arbitration.

However, the court found the Dalton Project defence raised a genuine issue requiring trial as to whether the guarantee was void.

The plaintiff, Tiffany Longarini, sued four lawyers for breach of confidence after a settlement email she sent was disclosed to the Crown in a related criminal proceeding.

The court found that the email was not protected by settlement privilege due to its content and the context of its use, and that even if it were, disclosure was justified by the accused’s right to make full answer and defence.

The claim was struck without leave to amend.

This costs endorsement addresses the appropriate disposition of costs following the granting of an interlocutory proprietary injunction in a commercial dispute involving $16 million advanced by the applicants to the respondents.

The court considers whether costs should be awarded immediately or in the cause, referencing relevant case law and legal commentary.

Ultimately, the court orders that costs be in the cause, given the expedited hearing and the nature of the proceedings.

The court considered a motion for an interlocutory proprietary injunction and leave to issue a certificate of pending litigation (CPL) over three development properties.

The Applicants advanced $16 million to the Respondents for property purchases, claiming a common intention that the properties would stand as security.

The Respondents argued the advances were loans or investments without property interests.

The court found a serious issue to be tried regarding an equitable mortgage and unjust enrichment, granted injunctions over two properties, and a limited injunction over the third to allow refinancing.

The court also found that, if necessary, a CPL would be granted.

The moving parties brought motions for leave to appeal the decision of Steele J. dated October 30, 2024.

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

The applicants sought an assessment of a $510 million partial contingency fee paid to the lawyer respondents by the Robinson Huron Treaty Litigation Fund (RHTLF) and a determination of whether the $10 billion settlement proceeds were assets of the RHTLF Trust.

The court directed an assessment of the legal fees under the Solicitors Act, finding that the First Nations were liable to pay the bills and that special circumstances warranted assessment.

The court also confirmed that the settlement proceeds are assets of the Trust.

The Corporation of the City of Kawartha Lakes moved to stay or dismiss the action against it, alleging abuse of process due to the plaintiffs' delayed disclosure of a cooperation agreement with co-defendants.

The plaintiffs concurrently moved for court approval of this agreement.

The court examined the disclosure obligations for partial settlement agreements that alter the litigation landscape.

It found that while immediate disclosure is generally required, the moving party had sufficient prior knowledge of the agreement's essential terms to avoid "litigation by ambush." Consequently, the motion to stay was dismissed, and the plaintiffs' motion to approve the cooperation agreement was granted.

A separate consent motion to dismiss the action against The Dominion of Canada General Insurance Company and John Doe was also granted.

Dr. Rochagné Kilian appealed a Superior Court order compelling her to comply with an investigation by the College of Physicians and Surgeons of Ontario regarding alleged false COVID-19 vaccine exemption certificates.

Dr. Kilian had refused to provide patient records, citing confidentiality and challenging the lawfulness and constitutionality of the College's demands and the statutory provisions.

The Court of Appeal dismissed the appeal, affirming the application judge's decision that the scope of a s. 87 application (to compel compliance) is limited to determining if there was a breach of statutory obligations and if the information requested was within investigatory powers.

The Court reiterated the principle of non-interference in ongoing administrative processes, holding that constitutional challenges and arguments regarding the lawfulness of the investigation's initiation must first be raised before the College's Discipline Committee before seeking judicial review.

This costs endorsement arises from a motion to add intervenors, which the court found was largely designed to delay an s. 87 application.

The College of Physicians and Surgeons of Ontario sought costs.

The court ordered costs payable by the moving parties/proposed intervenors/appellants and Rochagné Killian on a substantial indemnity basis, finding the motion gave rise to significant unnecessary legal expenses and delay.

The College of Physicians and Surgeons of Ontario (CPSO) applied for an order under s. 87 of the Health Professions Procedure Code to compel the respondent physician to produce patient records and cooperate with an investigation into her conduct regarding COVID-19 vaccine exemptions and public statements.

The respondent resisted, arguing privacy infringements and constitutional issues, and sought to expand the scope of the application beyond the limits set by prior Divisional Court rulings.

The court, bound by the Divisional Court's guidance, found the s. 87 application's scope narrow, rejecting constitutional challenges and arguments of overbreadth or abuse of process.

The court granted the order, finding the CPSO had established grounds for a statutory injunction and that the respondent had no legitimate reason to refuse cooperation.

A publication ban was also ordered, and the CPSO was awarded costs.

This motion concerned a request for a stay pending appeal of a lower court's dismissal of an application for leave to intervene.

The underlying matter involved the College of Physicians and Surgeons of Ontario seeking an order to compel Dr. Kilian to provide patient files related to COVID-19 vaccine exemptions.

The moving parties, anonymous patients of Dr. Kilian, argued their s. 8 Charter privacy rights would be violated without their intervention.

The Court of Appeal dismissed the motion for a stay, finding no serious issue to be tried.

The court held that the expectation of privacy in medical records is lower in a regulatory context, as the primary purpose of such investigations is public protection, and existing confidentiality protections within the regulatory scheme are sufficient.

A group of patients sought leave to intervene in an appeal brought by the College of Physicians and Surgeons of Ontario regarding an interlocutory stay of a s. 87 application to compel a physician's cooperation with an investigation.

The patients sought to protect their privacy interests in their medical records.

The court dismissed the motion for leave to intervene, finding it premature as the appeal only concerned the interlocutory stay and not the underlying application.

The dismissal was without prejudice to the patients' right to renew their motion if the underlying application proceeds.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld a committee's decision to issue a caution regarding his obstetrical care of a patient whose infant died.

The applicant argued the committee breached procedural fairness by rejecting his proposal for a remedial agreement and ignoring his expert's report.

The Divisional Court dismissed the application, finding the board's decision reasonable, as the committee was not bound by its decision-making framework guidelines and was entitled to weigh the expert evidence using its own specialized medical knowledge.

The appellants, former litigation counsel, appealed the dismissal of their summary judgment motion based on a limitations defence in a solicitor negligence claim.

The motion judge found the claim was not discoverable until the Supreme Court of Canada refused leave to appeal, or alternatively, that commencing an action earlier was not an appropriate means to remedy it.

The Court of Appeal dismissed the appeal, affirming that the claim was not time-barred, emphasizing that the respondents reasonably relied on their counsel's advice regarding the underlying litigation's legal errors, thus delaying discoverability of the negligence claim.

The College of Physicians and Surgeons of Ontario sought costs following successful applications against three physicians who failed to cooperate with regulatory investigations related to COVID-19.

The court rejected arguments that the respondents were public interest litigants or entitled to costs despite partial success.

Costs were awarded to the applicant on a partial indemnity scale against all three respondents, totaling approximately $40,000.

The appellant, Georgian Properties Corporation, appealed a summary judgment that dismissed its negligence action against respondent lawyers as statute-barred.

The negligence claim stemmed from the lawyers' work on condominium disclosure documents, mortgages, and a promissory note, which were later found insufficient or oppressive by a lower court.

The motion judge had found the claim discoverable by July 7, 2017, when a judge declined to strike a factum alleging inadequate disclosure.

The Court of Appeal found the motion judge erred in holding that loss occurred when the condominium corporation refused payments, clarifying that loss in solicitor negligence cases turns on the validity or enforceability of documents, not mere non-payment by third parties.

The Court concluded that Georgian Properties did not have sufficient material facts to infer liability against the lawyers until later, given the unusual procedural history and their reasonable expectation of success on the debt instruments.

The appeal was allowed, and the limitation defence dismissed.

The College of Physicians and Surgeons of Ontario (CPSO) sought an order compelling Dr. Rochagne Kilian to provide patient files related to COVID vaccine exemptions.

Anonymous patients (Proposed Intervenors) brought a motion to intervene as parties, arguing their privacy and Charter rights under sections 7 and 8, and the applicability of the O'Connor process.

Dr. Kilian supported the intervention, raising constitutional challenges to the CPSO's investigation powers.

The court reserved its decision on the intervention motion, finding that the "subject matter and scope of this Application" needed to be determined first, as there was significant dispute between the parties on this fundamental issue.