Gavin J. Tighe

The court considered motions for costs personally against George Windsor, who commenced proceedings on behalf of Gilles Jozias Overtveld and Gi-Las Management and Maintenance Ltd. without proper authority.

The action was found to be duplicative, meritless, and a waste of resources.

The court fixed costs on a substantial indemnity basis against Mr. Windsor personally, disallowed him from charging legal fees to the plaintiffs, and set out the principles for awarding costs in such circumstances.

This decision concerns the validity of a by-law amendment by Information Technology of Systems Ontario (ITSO) requiring member associations to maintain the same corporate structure and control as when they first became members, unless approved by ITSO’s board.

The Barrie & District Association of Realtors (BDAR) challenged the amendment, arguing it was a retroactive breach of contract, impermissibly vague, and made in bad faith to target BDAR.

The court dismissed the application, finding the amendment was not retroactive, was sufficiently clear, and was made for a legitimate purpose in the best interests of ITSO and its members.

The decision addresses a motion by Martin Z. Rosenbaum and his law corporation for the recusal of the case management judge, Lorne Brownstone, in a complex, multi-party trust account litigation arising from alleged misappropriation by Vanessa Ibe.

The court reviews the history of the litigation, the role of LAWPRO, and the management of case conferences.

The motion is dismissed, with the court finding no reasonable apprehension of bias and emphasizing the need for efficient case management in the interests of all parties, especially the victims.

The defendants, Dentons Canada LLP and Philip Rimer, brought a third-party claim against various individuals and entities, including other lawyers and advisors, seeking contribution and indemnity in a professional negligence action.

The third parties brought Rule 21 motions to strike the third-party claim, arguing that they acted as agents for the plaintiff and therefore any negligence on their part would be attributable to the plaintiff, precluding a third-party claim.

The court struck the claims against one director (Wang) and the escrow agent, finding them doomed to fail based on agency and contractual principles.

However, the court allowed the claims against the other third-party advisors and lawyers to proceed, finding that they fell into a category of non-agency advisory roles where the plaintiff might not be held contributorily responsible for their actions.

Leave to amend was granted to particularize the claims against certain third parties.

The Crown appealed a sentence imposed by a lower court after the respondents pleaded guilty to breaches of the Building Code Act.

The appeal concerned whether the sentencing judge erred by undercutting a joint submission on the fine amount.

The appellate court found that the sentencing judge failed to follow the established framework for departing from joint submissions, specifically by not raising concerns or inviting further submissions, and by not providing cogent reasons for the departure.

The appeal was allowed, and the fine was substituted to the amount originally proposed in the joint submission.

The defendants requisitioned an order to dismiss the plaintiffs' action under Rule 2.1.01(6) of the Rules of Civil Procedure.

The plaintiffs' claim alleged a wide-ranging conspiracy involving the defendants, lawyers, and judges, and sought to relitigate matters already determined in prior proceedings.

The court found the action to be manifestly devoid of merit, consisting of scandalous attacks and an evident attempt to relitigate decided issues.

The action was dismissed as frivolous, vexatious, and an abuse of process.

This appeal concerned the interpretation of an agreement of purchase and sale with an ambiguity regarding the calculation of the purchase price, which included Harmonized Sales Tax (HST).

The appellant vendor sought payment of remaining escrow funds.

The Court of Appeal found that the application judge erred by failing to properly interpret the agreement according to the principles of contractual interpretation and by relying on inadmissible expert appraisal evidence.

The appeal was allowed, the lower court's judgment and costs order were set aside, and the matter was remitted for a new hearing before a different judge.

The cross-appeal was not addressed.

The appellant, Gerald Sternberg, appealed the dismissal of his action against Cresford Capital Corporation, seeking payment as a guarantor for a vendor take-back mortgage.

Sternberg had sold land to Cresford, which then assigned the agreement and mortgage to a single-purpose corporation that defaulted.

Cresford's name appeared as guarantor on the electronic mortgage registration, but Cresford argued this was an error and that no guarantee agreement existed.

The motion judge granted summary judgment to Cresford, finding no guarantee agreement.

The Court of Appeal upheld this decision, affirming that the motion judge correctly interpreted the agreements and that the electronic registration was an error inconsistent with the parties' bargain.

The Court emphasized the high standard of deference to the motion judge's contractual interpretation and found no reversible error.

Following the dismissal of the plaintiff's action by summary judgment, the successful defendants sought costs on a substantial or full indemnity basis.

The plaintiff had alleged that the defendants conspired to conceal noise from idling trains and made fraudulent misrepresentations regarding a commercial sublease.

The court held that the plaintiff's unproven allegations of fraud and dishonesty justified an award of substantial indemnity costs.

Applying the overriding principle of reasonableness, the court awarded costs of $66,521.61 to the defendant real estate broker and $198,000 to the defendant accounting firm.

The appellant sought leave to file a reply factum in an appeal, asserting that the respondent's factum introduced new issues, specifically regarding whether a secondary argument was properly raised on appeal and the applicability of the doctrine of merger.

The court found that new issues were indeed raised by the respondent and granted the appellant leave to file a reply factum, while denying the respondent the right to file a sur-reply factum.

Costs for the motion were reserved to the panel hearing the appeal.

The plaintiffs sought to amend their claim to include Cara Vaccarino as a defendant and requested an order for the mirroring of her electronic devices and email account to preserve confidential and proprietary information.

This request arose after it was discovered that another defendant, Ms. Anderson, had forwarded confidential information to Ms. Vaccarino.

Despite Ms. Vaccarino's assertion that she did not recall opening or using the email, the court found it appropriate to order the mirroring to preserve evidence and determine the use of the information.

The court ordered the mirroring to cover the period from June 1, 2023, to the present, with counsel to coordinate the least disruptive process.

The defendants brought a motion for an order requiring the plaintiff to post security for costs on a pay-as-you-go basis, asserting the plaintiff was ordinarily resident outside Ontario.

The court found persuasive evidence supporting the defendants' contention, noting the plaintiff's weak rebuttal evidence and refusal to be examined.

Considering the serious allegations of collusion, fraud, deceit, and conspiracy made by the plaintiff against the defendants, and the potential for substantial indemnity costs if the claims were dismissed, the court determined it would not be unjust to order security for costs.

The motion was granted, and the plaintiff was ordered to post security for the defendants' partial indemnity costs.

The plaintiff sublessee brought an action against the defendant sublessor and its real estate broker, alleging they fraudulently concealed a latent defect regarding excessive noise from idling trains at the adjacent Union Station.

The defendants brought motions for summary judgment to dismiss the action.

The court granted the motions, finding that the train noise was a patent defect, not a latent one, and there was no evidence of a conspiracy to conceal it.

Furthermore, the plaintiff had acknowledged the proximity to the train station and agreed to an exculpatory clause in the lease that shielded the defendants from liability for train noise.

The appellant, a formerly licensed lawyer, appealed the dismissal of his $15 million action against his former counsel for negligent legal advice and ineffective assistance during contempt proceedings.

The motion judge had dismissed the action under Rule 21.01(3)(d) as frivolous, vexatious, or an abuse of process.

The Court of Appeal dismissed the appeal, affirming that the action constituted an impermissible collateral attack on previous contempt findings.

The court also upheld the motion judge's finding regarding the limited scope of the retainer, which did not obligate counsel to adduce the additional evidence the appellant claimed was missing, and concluded that such evidence would not have altered the original contempt finding based on the appellant's collusion with his former client.

The appellant's action for breach of fiduciary duty and negligence against real estate agents was dismissed on summary judgment due to being commenced outside the two-year limitation period.

The appellant argued she did not discover the material facts until later.

The Court of Appeal upheld the motion judge's decision, affirming that the discoverability period begins when the plaintiff knows or ought to have known the material facts, not the legal conclusion.

The court noted the appellant had previously pleaded the agents were her agents in a prior action, indicating knowledge of the material facts.

The appeal was dismissed with costs.

The defendants brought motions seeking to remove the plaintiffs' counsel, Julian Falconer and Falconers LLP, and for the production of portions of their file concerning advice given to plaintiff Bradley Blair regarding a complaint to the Ombudsman and a related judicial review application.

The defendants argued that counsel was a potential witness, an "unsworn witness," or had a conflict of interest based on a duty of loyalty, and that solicitor-client privilege had been waived.

The court dismissed both motions, finding no deemed waiver of privilege, no likelihood of counsel being a material witness, no "unsworn witness" concern given the nature of prior interactions, and no duty of loyalty conflict.

The defendants, Borden Ladner Gervais LLP and Robb McNaughton, brought a motion to stay an Ontario action initiated by the plaintiff, Pesorama Inc., on the basis of forum non conveniens.

The defendants argued that a forum selection clause in the retainer agreement between the parties stipulated Alberta as the exclusive jurisdiction for disputes.

The court applied the two-step test for enforcing forum selection clauses, finding the clause valid, clear, and applicable.

It determined that Pesorama Inc. failed to demonstrate "strong cause" to override the clause, particularly given the sophisticated nature of the parties and the commercial context of the dispute.

The court also noted the ongoing taxation process in Alberta and the inefficiency of parallel proceedings.

The motion was granted, and the Ontario action was stayed, allowing the plaintiff to pursue its claim in Alberta.

The defendants brought a motion to dismiss the plaintiff's professional negligence and negligent misrepresentation claims as frivolous, vexatious, or an abuse of process under Rule 21.01(3)(d).

The plaintiff, a suspended lawyer, alleged negligent legal advice and breach of professional obligations by the defendants in defending him against a civil contempt application, which resulted in a jail sentence.

The court found that the plaintiff's action constituted an impermissible collateral attack on prior court orders that had already established his contempt.

The court accepted the defendants' evidence regarding the limited scope of their retainer and dismissed the plaintiff's claims, including a claim for recovery of legal fees, which the court suggested should be pursued under the Solicitors Act.

The defendants moved for summary judgment to dismiss the plaintiff's action for breach of fiduciary duty and negligence, arguing it was brought beyond the two-year limitation period.

The plaintiff contended the claim was discoverable later due to alleged fraudulent concealment of the defendants' agency status.

The court found the plaintiff knew or ought to have known the material facts earlier, as evidenced by her pleadings in a prior related action.

The court dismissed the action as limitation barred, emphasizing that knowledge of material facts, not legal conclusions, triggers the limitation period.

The moving parties sought a review of a motion judge's order that dismissed their request for an extension of time to file a notice of appeal.

The underlying appeal was from an order striking out their statement of claim.

The Court of Appeal found no error in the motion judge's application of the test for an extension of time, agreeing that there was no apparent merit to the appeal and that granting an extension would prejudice the responding parties.

The Court noted that the Brampton action, which was struck, appeared to be an improper attempt to circumvent rulings made in prior Ottawa actions.

The motion for review was dismissed.