Gavin J. Tighe

The defendants requested that the plaintiff's action be stayed or dismissed as an abuse of process under Rule 2.1.01 of the Rules of Civil Procedure.

The plaintiff, who was self-represented, had commenced a new action seeking damages against the alleged tortfeasors from two prior motor vehicle accidents, their insurers, their counsel, and her own former counsel, alleging impermissible conduct delaying her existing tort claims.

The court found that the new action was duplicative and that any allegations regarding the conduct of the ongoing litigation should be addressed within those existing actions.

The court stayed the new action against all defendants pending the determination of the underlying tort actions.

In an appeal arising from a failed residential real estate transaction, the appellants challenged the dismissal of their third-party negligence claim against their real estate agent and brokerage.

The Court of Appeal held that the trial judge erred by confining the analysis to whether the agent had actively misled the appellants, without determining whether the agent negligently failed to advise them of the consequences of breaching the agreement and failed to address misleading communications with the vendors.

The court also held it was erroneous to rely principally on signatures and initials on the agreement to infer that the agreement had been adequately explained, without resolving whether the appellants reasonably misunderstood its effect.

Because the appeal record required factual and credibility findings that an appellate court should not make, a new trial before a different judge was ordered.

The costs order below was set aside, and the appellants received $20,000 in appeal costs.

The appellant vendor appealed the dismissal of its breach of contract claim arising from a failed residential real estate transaction after the respondent purchaser repudiated before closing.

The central issue was mitigation: although the defaulting purchaser bore the burden of proving failure to mitigate, the evidentiary record supported the motion judge's finding that the vendor failed to take reasonable steps to market the property, including by failing to produce records of any property-specific marketing efforts during the six-month resale period.

The court held that, given those factual findings, the motion judge was entitled to assess damages using the property's appraised value as of the breach date rather than the later resale price.

The court also rejected the argument that summary judgment became inappropriate because the appellant's own mitigation evidence was deficient.

Appeal dismissed with costs.

The plaintiff, former Chief Commissioner of the Canadian Human Rights Commission, brought defamation actions against the defendants over allegations of antisemitism.

The defendants brought anti-SLAPP motions to dismiss the actions.

Two organizations, Independent Jewish Voices Canada and the National Council of Canadian Muslims, brought motions to intervene in the anti-SLAPP motions to provide perspective on the meaning of antisemitism.

The court dismissed the motions to intervene, finding that anti-SLAPP motions are intended to be expeditious, preliminary screening mechanisms, and that adding interveners would unnecessarily expand the evidentiary record and scope of the private dispute.

The court also ordered that the defendants, as moving parties, would present their arguments first at the anti-SLAPP hearing.

The Attorney General for Ontario sought judicial review of two Information and Privacy Commissioner decisions ordering the Cabinet Office to obtain and review entries from the Premier's personal cellphone call logs that related to government business.

The IPC had found that these specific call logs were under the control of the Cabinet Office pursuant to s. 10(1) of the Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the application, finding the IPC's application of the National Defence control test was reasonable and that the decisions appropriately balanced the public's right of access to government information with the protection of personal privacy.

Following a failed residential real estate transaction in which the purchasers did not pay the required deposit, the defendants pursued a third party claim against their real estate agent and brokerage for indemnity.

The central allegation was that the agent had advised the purchasers that the agreement was effectively conditional on delivery of the deposit and that non-payment would permit them to walk away without liability.

The court rejected that factual theory, finding the signed agreement and surrounding communications supported the conclusion that the purchasers had been committing to a firm deal and were later attempting to avoid completion after family advice.

The court accepted the general statement of the real estate agent’s duty of care but held no breach was established on the evidence.

The third party claim was dismissed.

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.

Chicago Title Insurance Company brought a motion to disqualify the law firm Gardiner Roberts LLP from representing Anthony Maniaci in an indemnity application.

Chicago Title argued that Gardiner Roberts had a conflict of interest because the firm also represented Thomas Donnelly, a lawyer who had previously provided coverage opinions to Chicago Title and was threatened with a negligence claim by them.

Chicago Title asserted that Gardiner Roberts possessed confidential and privileged information through its representation of Donnelly that could be misused.

The court granted the motion, holding that the integrity of the judicial system required the removal of Gardiner Roberts as counsel of record due to the significant risk of conflict and the potential for lawyers involved in the coverage advice to become witnesses.

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.

The moving parties sought leave to appeal a July 2, 2024 decision of Justice Black.

The Divisional Court granted leave to appeal on the single issue of whether the Anton Piller order was correctly enlarged to include the business and phone computer of one of the moving parties.

Leave to appeal on all other issues was dismissed.

The court also granted a stay of paragraphs 2 to 4 of the underlying order pending the appeal, with no costs awarded due to divided success.

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 appealed a decision of an Associate Justice staying its Ontario action against its former legal counsel based on a forum selection clause in the retainer agreement.

The appellant argued the Associate Justice lacked jurisdiction under s. 106 of the Courts of Justice Act to apply the strong cause test for forum selection clauses.

The Divisional Court dismissed the appeal, finding the Associate Justice had jurisdiction to stay the proceeding and made no palpable and overriding errors in enforcing the forum selection clause, which required disputes to be resolved in Alberta.

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.