Fredrick Ramsay Schumann

The appellants, Xundong Qin and Cenith Air Inc., sued the Ontario Securities Commission (OSC) and three of its employees for malicious prosecution after the OSC's allegations against them were dismissed.

The respondents moved to strike the claim, arguing issue estoppel applied due to a prior Superior Court order by Pattillo J. that continued a freeze order, finding a "serious issue to be tried." The motion judge granted the strike.

The Court of Appeal allowed the appeal, holding that the "serious issue to be tried" standard for continuing a freeze order is a lower threshold than "reasonable and probable cause" required for malicious prosecution.

Therefore, the issue of reasonable and probable cause was not "necessarily bound up" in Pattillo J.'s decision, and issue estoppel did not apply.

The matter was remitted to the Superior Court.

The appellant appealed the dismissal of its breach of contract action on summary judgment.

The appellant claimed an ongoing oral contract required the respondent to make annual payments of $1.2 million in perpetuity.

The motion judge found no documentary evidence supporting the existence of such a contract and dismissed the action.

The Court of Appeal held that the motion judge's findings were reasonable and entitled to deference.

The appeal and the application for leave to appeal the costs award were dismissed.

The appellant appealed a one-year sentence for civil contempt imposed by the trial judge.

The appellant argued the sentence was excessive, that the judge was inflamed by the appellant's non-compliance with asset freezing and disclosure orders, and that the sentence was purely punitive rather than coercive.

The appellant also contended the sentence was out of line with other civil contempt cases.

The Court of Appeal dismissed the appeal, finding the sentence appropriate given the appellant's multiple opportunities to purge contempt, attempts to deceive the court, the brazen and deliberate nature of the contempt, the underlying $7 million civil fraud, and the lack of asset recovery despite the judge's delay in imposing sentence.

The appellant sought to set aside an order enforcing a settlement agreement.

The appellant was a fully informed participant in the settlement, acting on legal advice, and knowingly entered into the settlement structured in the manner challenged on appeal.

The Court of Appeal found no illegality or impropriety in the enforcement of the settlement and upheld the motion judge's decision to enforce it.

The court also upheld the costs award made by the motion judge.

In this class action appeal, the court considered whether the deemed undertaking rule under Rule 31.1.01(3) of the Rules of Civil Procedure applies to the names and number of class members who opted out of two companion class actions concerning municipal licensing fees for charitable and religious fundraising events.

The appellants had engaged in a public campaign during the opt-out period to encourage class members to opt out, which the class actions judge found created undue influence.

A protection order was imposed preventing disclosure of opt-out information during a reconsideration period.

After the reconsideration period, the appellants sought to lift the protection order.

The Divisional Court held that the deemed undertaking rule applied to the opt-out information.

The Court of Appeal reversed, holding that the opt-out information is statutorily created information not subject to the deemed undertaking rule, and that class members should be treated as akin to parties whose identities are entitled to be known by the actual parties and the public.

Enrique Kachuka brought a motion under ss. 8 and 24(2) of the Charter to exclude seized currency as evidence in a forfeiture application by the Attorney General of Ontario under the Civil Remedies Act.

Kachuka argued that the Information to Obtain (ITO) for the search warrants of his vehicle and apartment was legally insufficient, leading to an unreasonable search and seizure in breach of s. 8 of the Charter.

He also contended that police breached his s. 8 rights by submitting a report of seized items past the statutory deadline and with technical errors.

The court found that the issuing Justice of the Peace had reasonable grounds to issue the search warrants, as police surveillance and corroborated confidential informant information established a sufficient nexus between observed drug transactions and Kachuka's apartment.

The court also determined that the reporting delays and errors did not constitute a meaningful infringement of s. 8 rights, as there was no residual privacy interest in the seized cash.

The motion to exclude evidence was dismissed, and the forfeiture application was to proceed.

The plaintiffs succeeded on their appeal to add a term confirming the applicability of the deemed undertaking under Rule 30.1.

They sought partial indemnity costs for the appeal and leave motion.

The court awarded the plaintiffs $13,202 in costs for the appeal.

Regarding the initial motion below, the court found that success was divided and set aside the previous costs order of $16,686.33, ordering no costs for the initial hearing.

The appellants (tenant and its successor) repudiated a commercial lease for an industrial property owned by the respondent.

The respondent was forced to sell the property and sued for damages.

The trial judge awarded $1,277,000 in damages, including lost rental profits and lost capital appreciation.

The appellants appealed, arguing the sale at fair market value fully mitigated damages and that lost capital appreciation was too remote.

The Court of Appeal allowed the appeal, finding that damages for lost capital appreciation were too remote under the Hadley v. Baxendale test, that the property was sold at fair market value, and that damages should be calculated using a discounted cash flow analysis based on the 2013 sale price with appropriate deductions for mitigation.

Following conviction on charges of Attempt to Commit Mischief to Data and Unauthorized Use of a Computer, the defendant, a former Chief of Staff to the Premier of Ontario, was sentenced to four months imprisonment followed by twelve months probation with 100 hours of community service.

The defendant had directed the wiping of computer hard drives in the Office of the Premier to destroy records responsive to Freedom of Information requests and anticipated legislative committee production orders regarding the gas plant controversy.

The court found the offence struck at the heart of democratic accountability and transparency, warranting incarceration despite the defendant's otherwise exemplary character and community contributions.

The appellant charities in two related class actions appealed a case management judge's decision declining to continue a protective order over the identities of potential class members who opted out.

The appellants argued the judge failed to consider whether the deemed or implied undertaking rules applied to this information.

The Divisional Court allowed the appeal, holding that the deemed undertaking rule under Rule 30.1.01(3) of the Rules of Civil Procedure applies to the names and numbers of opt-outs disclosed by the plaintiffs' counsel to the defendants' counsel, as this information is relevant and discoverable.

David Livingston, Chief of Staff to the Premier of Ontario, and Laura Miller, Deputy Chief of Staff for Communications and Strategy, were charged with Breach of Trust by a Public Official, Commit Mischief to Data, and Unauthorized Use of a Computer.

The Crown abandoned the Breach of Trust charge.

The defendants were accused of directing the wiping of twenty computers in the Office of the Premier during the transition from Premier McGuinty to Premier Wynne in early 2013, allegedly to destroy records responsive to Freedom of Information requests and potential Legislative Standing Committee Production Orders related to the controversial cancellation and relocation of the Oakville and Mississauga gas plants.

The Crown alleged the defendants obtained administrative rights through deception and hired an outside IT consultant to indiscriminately wipe hard drives.

The defendants claimed they sought only to delete personal information and Liberal Party documents from departing staff computers.

Justice Lipson found Livingston guilty on both remaining counts (Attempt to Commit Mischief to Data and Unauthorized Use of a Computer) but acquitted Miller due to insufficient evidence of her knowledge of Livingston's deceptive means in obtaining administrative rights.

A helicopter operated by an air ambulance service crashed shortly after takeoff from Moosonee, Ontario on May 31, 2013, killing four crew members.

The Crown charged the operator with six counts under the Canada Labour Code, alleging failure to ensure employee safety.

At trial, three counts remained: two alleging failure to provide pilots with means to maintain visual reference while operating at night (counts 3 and 4), and one alleging failure to provide adequate supervision by eliminating the Base Manager position (count 10).

The Crown argued that night vision goggles should have been provided.

The court found that while the crash was caused by controlled flight into terrain, the defendant exercised due diligence and complied with all regulatory requirements.

All three counts were dismissed.

The defendants, David Livingston and Laura Miller, pleaded not guilty to charges of breach of trust by a public official, mischief to data, and unauthorized use of a computer.

The Crown withdrew the breach of trust count at the close of its case.

The defendants brought a motion for a directed verdict of acquittal on the remaining two counts.

The court found that while the Crown failed to establish that actual data was destroyed, there was sufficient evidence that the defendants attempted to commit mischief to data without legal justification or colour of right.

The motion was allowed in part on the mischief to data count, which was reduced to attempt to commit mischief to data.

The motion was dismissed on the unauthorized use of a computer count.

The Crown sought to qualify Robert Gagnon, a retired OPP officer, as an expert in computer systems operation and forensic recovery of computer data.

The defence opposed qualification, arguing that Gagnon's extensive involvement in the police investigation and his expressed bias regarding the defendants' guilt disqualified him from providing independent and impartial expert evidence.

The court excluded Gagnon's evidence, finding that he had conflated the roles of expert and investigator, participated extensively in investigative strategy and team meetings, and demonstrated lack of independence and impartiality through his communications recommending charges and providing strategic legal advice to investigators.

These consolidated appeals arise from related class actions certified in 2012 concerning bingo license and administration fees charged by two municipalities.

The appellants, charitable organizations, sought to amend their pleadings after the opt-out period expired to claim disgorgement of all allegedly illegal fees received by the municipalities, including those paid by persons who had opted out of the class.

The Court of Appeal quashed appeals of interlocutory orders lifting protective orders that had shielded the identities of opt-outs during a reconsideration period, and dismissed appeals of orders refusing leave to amend the statements of claim.

The court held that the proposed amendments would fundamentally alter the nature of the certified claims and lacked reasonable prospect of success.

This endorsement addresses the costs of an action where the plaintiff, Saramia Crescent General Partner Ltd., was awarded $1,277,000 in damages for breach of lease.

The court determined that the plaintiff was entitled to costs on a partial indemnity scale up to November 8, 2016, and on a substantial indemnity scale thereafter, having beaten two offers to settle.

The defendants' arguments that the costs were excessive, that the issues were novel justifying a reduction, or that mediation costs should be excluded were largely rejected.

A minor reduction was made for communications costs.

The court also drew an adverse inference against the defendants for failing to disclose their own costs.

The defendant corporation brought a motion to quash counts 10 and 11 of an information charging it with offences under the Canada Labour Code.

The defendant argued the counts were defective because they failed to specify which prescribed regulations had been breached, contrary to the principles established in R v Wis Developments.

The Crown sought to amend the counts to allege breaches of section 124 rather than section 125 of the Act.

The court found the counts were fatally deficient in failing to identify the specific regulations allegedly breached, but permitted amendment to reframe the charges under section 124 as a single statutory duty to ensure employee health and safety, rather than specific regulatory violations.

The plaintiff landlord sued the defendant tenant for damages after the tenant repudiated a commercial lease with eight years remaining.

The repudiation forced the plaintiff to sell the property, as it could not afford the carrying costs without the rental income and re-letting was unfeasible.

The defendants admitted liability but argued the plaintiff suffered no damages because the property was sold at fair market value.

The court rejected this argument, finding the forced sale was not at fair market value and did not compensate the plaintiff for the lost income stream and capital appreciation.

The court accepted the plaintiff's discounted cash flow analysis to quantify damages, using the 2015 appraised fair market value to account for foreseeable lost capital appreciation, and assuming reasonable mitigation through a hypothetical investment in a REIT basket.

The defendants brought a motion to disqualify the plaintiff's counsel, Gowling WLG (Canada) LLP ("Gowlings"), from further representing the plaintiff.

The defendants argued that Gowlings possessed confidential information obtained during failed negotiations with four dissident partners (now associated with the defendants) and that Gowlings partners were likely material witnesses.

The court found that Gowlings held confidential information relevant to the claims, imparted under a reasonable expectation of confidentiality, and that there was a risk of misuse.

Given the lack of an immediate and effective ethical wall, and the early stage of litigation, the court granted the motion, disqualifying Gowlings.

The potential for Gowlings partners to be witnesses was considered an additional factor supporting disqualification.

The plaintiff, a former law student, sued his articling principal for professional negligence and the Law Society of Upper Canada (LSUC) for regulatory failures after his articling position was terminated two weeks into the year.

Both defendants brought motions under Rule 21 to strike the Statement of Claim for failing to state a cause of action.

The court struck the claim against LSUC without leave to amend, finding it immune under section 9 of the Law Society Act and that the plaintiff failed to plead bad faith or gross negligence.

The claim against the articling principal was struck with leave to amend, as it lacked sufficient material facts to support a professional negligence claim, though a theoretical cause of action was possible.

No costs were awarded due to the plaintiff's circumstances.