Frederick J. Shuh

The moving parties brought a motion for leave to appeal multiple orders and requested extensions of time.

The Divisional Court denied the motion and awarded costs to the respondent in the fixed amount of $2,500.

The defendant brought a motion to quash two summonses to witness issued by the plaintiffs, which sought to examine two of the defendant's lawyers on pending interlocutory motions regarding the sale of jointly owned property.

The court quashed the summonses on three grounds: failure to comply with service requirements under the Rules of Civil Procedure, failure to demonstrate that the lawyers' evidence was relevant and necessary, and abuse of process.

The court found the summonses were issued for ulterior purposes, including gathering evidence for a separate action against the lawyers and attempting to create a conflict of interest to preclude them from acting as counsel.

Following a trial in which the defendants successfully defended multiple claims including breach of contract, spoliation, unjust enrichment, and property-related torts, the court determined costs.

The defendants sought substantial indemnity costs and recovery of professional fees for several witnesses characterized as participating experts.

The court confirmed that participating experts may justify reasonable compensation where their expertise arises from involvement in the underlying events.

Applying Rules 49 and 57.01 of the Rules of Civil Procedure and principles of proportionality, the court awarded partial indemnity costs to the date of the defendants’ offer to settle and substantial indemnity costs thereafter.

The applicant pharmacist sought judicial review of a decision by the Health Professions Appeal and Review Board, which confirmed an order requiring him to complete a communication skills program following a patient complaint.

The applicant argued he was not given notice that the tone of his response to the complaint would be considered, and that the ordered program was not a specified remediation program under the Regulated Health Professions Act.

The Divisional Court dismissed the application, finding the Board's decision reasonable, as the committee was entitled to consider the applicant's response without further notice, and the ordered program was sufficiently specified.

The plaintiff sought an order staying or adjourning a scheduled trial pending the outcome of an appeal from an earlier interlocutory order dismissing an application related to enforcement of debt acknowledgments.

The plaintiff argued that Rule 63.01(1) of the Rules of Civil Procedure automatically stayed the proceeding, or alternatively that the court should exercise discretion under Rule 63.02(1) to stay the trial.

The court held that Rule 63.01(1) applies only to orders for the payment of money and therefore did not mandate a stay.

Considering the procedural history, repeated adjournments, and the age of the action, the court concluded that the interests of justice favored allowing the trial to proceed despite the pending appeal.

The moving party sought an order at the commencement of trial declaring entitlement to enforce notarized debt acknowledgments against the respondents as if judgments had already been obtained, and requiring payment of the amounts stated in those instruments.

The motion relied on a prior decision determining that the applicable limitation period for enforcement of German Submissions for Compulsory Enforcement was 30 years and argued that the earlier ruling created issue estoppel preventing the respondents from contesting certain matters at trial.

The court held that the prior motion addressed only the applicable limitation period and did not finally determine questions regarding the identity of the holder of the acknowledgments, the validity of their assignment, or the amount owing.

Because those issues were not essential to the earlier decision and were not conclusively determined, the doctrine of issue estoppel did not apply.

The respondents were therefore entitled to raise those issues at trial.

The appellants appealed an order dismissing their motion for partial summary judgment in an Ontario action seeking to enforce German submissions to compulsory enforcement arising from guarantees of bank loans.

The central issue was whether those instruments were foreign judgments for Ontario limitations purposes or were governed by German substantive law under conflict of laws principles.

The court held the instruments were not German judgments and that German law supplied the applicable 30-year limitation period, with the result that the claims were not statute-barred.

The court also rejected the argument that the motion judge had recast the pleadings and dismissed the motion to admit fresh evidence.

The defendants sought costs following their successful motions to compel the plaintiff to provide particulars of damages and to quash a summons to a witness.

The court found that the plaintiff's conduct, which included unfounded allegations of bad faith, a last-minute recusal motion without notice, and unreasonable delay tactics, warranted an elevated costs award.

The court fixed the total costs payable by the plaintiff to the defendants at approximately $45,000.

The defendants brought a partial summary judgment motion arguing that claims seeking enforcement in Ontario of German “Notarized Debt Acknowledgments” were barred by limitation periods.

The court characterized the acknowledgments as foreign agreements creating unilateral covenants permitting enforcement without a prior German court judgment, rather than foreign judgments.

Applying conflict-of-laws principles, the court held that German limitation law governed.

Under the German Civil Code, enforceable documents such as the acknowledgments are subject to a 30‑year limitation period.

As a result, the claims were not statute‑barred and the motion was dismissed.

The defendants brought a motion seeking to compel the plaintiff insured to attend for an examination under oath or alternatively an examination for discovery regarding the scope and quantum of damages arising from a flood loss claim under a property insurance policy.

The plaintiff argued that because the insurer had invoked the appraisal process under s. 128 of the Insurance Act, issues of quantum were exclusively within that process and outside the court’s jurisdiction.

The court rejected that position, holding that the statutory right to examine the insured under oath was not displaced by the election to proceed through appraisal and that the court retained jurisdiction to make procedural orders facilitating the statutory scheme.

The court also found the plaintiff’s proof of loss materially deficient and concluded that disclosure regarding damages was necessary.

A separate motion by the defendants to quash a summons requiring their appointed appraiser, who had since become counsel of record, to be examined was granted as the proposed examination constituted an unnecessary fishing expedition lacking evidentiary relevance to the pending motion.

At a Commercial List case conference in a civil action involving debt obligations and guarantees, the court addressed procedural scheduling and evidentiary issues relating to an upcoming summary judgment motion.

The principal issue on the anticipated motion was whether the plaintiff’s claims were statute‑barred under applicable limitation laws, potentially governed by German law.

The court directed the parties to produce supplementary expert reports addressing the applicable foreign law and its limitation periods, particularly in light of allegations of fraudulent concealment that might affect discoverability.

The court also addressed potential hearsay objections to affidavit evidence and ordered preservation and production of relevant documents for the period 1996–2004.

The appellants appealed a trial judgment awarding damages against them for failing to pay amounts owed under agreements for the purchase of an operating gravel pit.

The appellants argued they were induced to enter the agreements by oral warranties and promises made by the respondents, which were breached.

The Court of Appeal dismissed the appeal, deferring to the trial judge's factual findings that no such oral undertakings or warranties were made, noting the appellants were represented by experienced counsel and the alleged warranties were not included in the written documents.