Faren Hillary Bogach

This supplementary endorsement addresses a dispute over compliance with a previous court order for the production of minutes of settlement.

Schindler Elevator Corporation argued that the defendants (WBP) had excessively redacted the minutes beyond what was permitted, specifically regarding references to items in an exhibit.

The court found that WBP's additional redactions were not justified and went beyond the original order.

It was determined that knowing the specific items to which settlement compensation was allocated was crucial for Schindler to prepare for trial and assess potential double-recovery.

The court ordered WBP to produce a further version of the minutes of settlement, removing the impugned redactions while maintaining the confidentiality of specific settlement and allocation amounts.

The plaintiff, Schindler Elevator Corporation, moved for the production of fully unredacted minutes of settlement between the defendants (WBP) and a third party (Yuanda).

WBP had produced a partially redacted version, claiming settlement privilege over the financial terms.

The court found that while the specific settlement amounts should remain privileged, other redacted information relevant to the apportionment of delay and quantification of damages must be disclosed to ensure procedural fairness at the upcoming trial.

The court ordered WBP to produce a further version of the minutes with only the specific settlement amounts and payment dates redacted.

The moving party sought an order authorizing a US attorney to conduct the examination and cross-examination of US-based delay experts at an upcoming trial in a construction lien reference.

The responding parties opposed the motion, arguing the Law Society Act prohibits non-licensees from providing legal services in Ontario.

The Master dismissed the motion, finding that the clear and precise language of section 26.1 of the Law Society Act removed any inherent jurisdiction of the court to permit a non-licensee to provide legal services, and a reference master has no greater discretion than the court.

The applicant, a care facility operator, brought an application seeking declarations that the respondent County acted in bad faith by not renewing their annual services agreement under the Domiciliary Care Program.

The County had declined to renew the fixed-term contract due to a history of non-compliance, particularly regarding Fire Code violations and the delayed installation of a sprinkler system.

The court dismissed the application, finding that the contract had a clear end date with no automatic renewal clause, and therefore the County owed no duty of good faith to renew it.

Furthermore, the court found no evidence of bad faith, noting that the County had repeatedly communicated its concerns and provided reasons for non-renewal despite having no contractual obligation to do so.

The appellants, a developer, appealed from a summary judgment that dismissed claims for conspiracy and negligent and fraudulent misrepresentation against appraisers, and ordered a mini-trial on claims of negligence, inducing breach of contract, and intentional interference with economic relations.

The Court of Appeal upheld the dismissal of the conspiracy and misrepresentation claims, finding no reasonable reliance and no evidence of conspiracy.

The court also set aside the mini-trial order and dismissed the remaining claims, finding they had no possibility of success due to lack of reliance, absence of unlawful conduct, and expiration of the limitation period.

Following a successful motion, the plaintiff sought partial indemnity costs of $17,000.

The defendant argued the amount was excessive and proposed $6,000.

The court found the requested amount fair and reasonable, noting it was almost identical to the partial indemnity costs incurred by the defendant itself.

Costs were fixed at $17,000.

The plaintiff, Walsh Construction/Bondfield Partnership, brought a motion to refer its proceeding against Chartis Insurance Company of Canada to Master Albert, who was already hearing related construction lien matters concerning the same project.

The court considered whether the litigation between the general contractor and the performance bond issuer should be heard by the same Master to avoid a multiplicity of proceedings and inconsistent findings.

The motion was granted, finding significant overlap in factual and legal issues and no undue prejudice to the defendant.

The defendant landlord moved for a mandatory interlocutory injunction to compel the plaintiff tenant to allow access to the leased premises for environmental testing related to redevelopment.

The landlord relied on a lease provision requiring the tenant not to hinder redevelopment.

The court dismissed the motion, finding that the lease provision did not grant the landlord a right of access, the landlord's case on the merits was weak, and there was insufficient evidence of irreparable harm.

The appellant appealed a summary judgment dismissing its action against the respondent for an allegedly unfair tender process relating to a commercial lease.

The motion judge had found that all four bids in the first tender process were non-compliant and that the respondent was justified in ordering a second round, which the appellant chose not to participate in.

The Court of Appeal upheld the summary judgment, applying the palpable and overriding error standard to the motion judge's fact-finding under Rule 20, and found no error in the fairness and good faith analysis.

The applicant developer sought leave to issue a certificate of pending litigation (CPL) against a condominium unit it had sold to the respondent, alleging the agreement of purchase and sale was induced by fraudulent representations concerning a larger contemplated purchase of additional units.

The applicant sought rescission and claimed the respondent held the unit in constructive trust.

The court held that the applicant had established a triable issue and a claim to an interest in land for CPL purposes.

However, applying equitable discretion and the Dhunna factors, the court concluded that the property was not unique to the applicant, damages were readily calculable, and the respondent would suffer greater harm due to a pending sale to a third party.

The motion for leave to issue a CPL was therefore dismissed.

Following the dismissal of a motion for leave to appeal, the successful defendant sought costs on a partial indemnity basis.

The responding party conceded entitlement to costs but argued the amount claimed was excessive, particularly with respect to legal research disbursements.

Applying the fairness and reasonableness principles under Rule 57.01 of the Rules of Civil Procedure, the court assessed the competing submissions and fixed costs at an amount lower than requested but higher than the amount proposed by the responding party.

Costs were awarded on a partial indemnity basis.

The defendant brought a motion for summary judgment in an action alleging breach of the duty of fairness and good faith in a federal government tendering process.

The plaintiff alleged the procurement authority structured the process to ensure another bidder would succeed and sought damages for loss of the contract.

The court held the matter was largely document-driven and suitable for summary judgment.

Interpreting the tender documents, the court found the procurement authority had broad discretion to reject conditional bids and was not obligated to seek clarification regarding the plaintiff’s conditional agreement of purchase and sale.

The evidence did not establish bias or a sham second tender process.

The motion for summary judgment was granted and the action dismissed.

The defendant municipality moved to discharge a certificate of pending litigation registered by the plaintiff developer in an action seeking specific performance of a preliminary agreement for redevelopment and sale of municipal lands.

The court considered whether the plaintiff had a reasonable claim to an interest in land under s.103(6) of the Courts of Justice Act.

The court held that the preliminary agreement was not a binding contract because essential terms remained unsettled and the transaction depended on further agreements and negotiations, including participation by a third-party development partner that had withdrawn.

As the agreement was incapable of specific performance and the plaintiff therefore had no reasonable claim to an interest in land, the certificate of pending litigation was discharged.

The appellants appealed a sealing order that redacted the amounts to be paid under two proposed settlement agreements in a CCAA proceeding.

The appellants argued the sealing order unjustifiably infringed the open court principle.

The Court of Appeal dismissed the appeal, finding that litigation settlement privilege applied to the settlement agreements until approved by the court.

The court held that the sealing order was a minimal intrusion on the open court principle, the requirement to sign a confidentiality agreement did not impose an undue burden, and the respondents did not waive privilege by complying with the court order.

The appellants appealed the dismissal of their summary judgment motion regarding property damage allegedly caused by the negligent construction of neighbouring homes.

They argued the motions judge failed to apply the new, more flexible Rule 20 of the Rules of Civil Procedure and provided inadequate reasons.

The Divisional Court agreed the reasons were inadequate but upheld the dismissal, finding significant conflicting evidence regarding personal liability, independent contractor liability, and damages that required a trial.

The appellants, a bank and a payment processor, appealed a trial judgment finding them liable for improperly debiting the respondent merchant's bank account for MasterCard fines and credit card replacement costs.

The Court of Appeal dismissed the appeal, finding that the payment processor was not merely an agent of the bank and that the merchant agreements, which were contracts of adhesion, did not contain provisions making the merchant liable for the specific fines or replacement costs.

Furthermore, the bank failed to prove that the merchant's conduct caused the need to replace the credit cards.

The plaintiffs sought leave to appeal an order dismissing their motion for summary judgment regarding property damage caused by the defendants' construction.

The motions judge had dismissed the summary judgment motion with a one-sentence endorsement citing 'numerous conflicts in the evidence' without further explanation.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order due to the inadequacy of the reasons provided and the failure to apply the newly amended Rule 20 for summary judgments.