George Michael Pakozdi

The Court of Appeal for Ontario dismissed the appeal of three decisions arising from a single summary judgment motion regarding the status of a disputed portion of a road ("Road A") in the Township of Coleman.

The appellants sought a declaration that the road was a public, common, or access road to facilitate subdivision approval and claimed damages for alleged municipal misfeasance.

The court found no error in the motion judge’s use of partial summary judgment, nor in his findings that the road was neither a public nor common road.

The court also dismissed motions to admit fresh evidence and denied leave to appeal the costs order.

The appellant, Dr. Kulvinder Kaur Gill, appealed the dismissal of her defamation, conspiracy, and negligence claims against four defendants (Dr. Angus Maciver, André Picard, Carly Weeks, and Alheli Picazo) under Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act), and the associated costs order totaling over $1.1 million.

The Court of Appeal upheld the motion judge's decision, finding that the claims were strategic lawsuits against public participation (SLAPPs).

The court affirmed that the "fair comment" defence was prima facie available to Picard, Weeks, and Picazo, and that the appellant failed to demonstrate "serious harm" causally linked to the defendants' expressions, which would outweigh the public interest in protecting free expression.

The court also upheld the substantial indemnity costs award, distinguishing the case from general guidance due to its complexity and the number of defendants.

This is a costs endorsement following an appeal where the appellant, Everest Finance Corporation, successfully varied the judgment below to increase awarded amounts.

The appellant sought full indemnity costs of $15,187.15 based on a mortgage term.

The respondents did not file submissions.

The Court of Appeal granted the full indemnity costs, affirming that contractual provisions for costs actually expended are generally enforced absent misconduct or unfairness.

Everest Finance Corporation appealed a motion judge's decision that, while granting summary judgment for mortgage arrears, reduced the amount of interest and costs owed by the respondents.

The motion judge had reduced the interest arrears from $63,010.50 to $20,000 and costs from $34,846.85 to $20,000, attributing the reduction to delays caused by the COVID-19 pandemic and exercising discretion.

The Court of Appeal found no legal basis for a court to reduce contractual interest or full indemnity costs due to court system delays or a general sense of fairness, stating that judicial discretion in costs does not extend to altering contractual terms.

The appeal was allowed, and the judgment was varied to restore the full amounts of interest and costs sought by the appellant.

Following the successful dismissal of the plaintiffs' defamation action under the anti-SLAPP provisions of the Courts of Justice Act, the moving parties (defendants) sought full indemnity costs totalling over $1.1 million.

The court awarded full indemnity costs as requested, subject to a reduction for the costs of non-active counsel, clerks, or students.

The court also apportioned liability, finding one plaintiff jointly and severally liable only for costs related to the OMA dispute, while the other plaintiff was solely liable for costs related to the COVID-19 dispute.

The plaintiffs, two physicians, brought a $12 million defamation action against over 20 defendants, including other physicians, journalists, and media organizations.

The claims arose from two main disputes: an internal Ontario Medical Association (OMA) dispute and public criticism of the plaintiffs' controversial tweets regarding COVID-19, in which they opposed vaccines and lockdowns and promoted hydroxychloroquine.

The defendants brought anti-SLAPP motions under s. 137.1 of the Courts of Justice Act.

The court found that the defendants' expressions related to matters of public interest and that the plaintiffs failed to show their claims had substantial merit or that the defendants lacked valid defences, such as fair comment and qualified privilege.

The court also found that the public interest in protecting the defendants' expressions far outweighed any harm suffered by the plaintiffs.

The action was dismissed against all defendants.

Following a successful motion by the defendants to stay the proceedings in favour of arbitration, the defendants sought costs on a substantial indemnity scale, arguing that a letter demanding the plaintiff discontinue the action constituted a Rule 49 offer.

The court held that the letter did not contain a genuine compromise and therefore did not attract substantial indemnity costs.

The court awarded the defendants partial indemnity costs in the amount of $43,805.72, finding the amount reasonable for a stay motion involving considerable legal research.

The defendants moved to stay the plaintiff's action for breach of a franchise development agreement, relying on an arbitration clause specifying Chicago as the venue.

The plaintiff opposed the stay, arguing that the defendants had no real presence in Chicago and that the forum was inconvenient and artificial.

The court granted the stay, applying the competence-competence principle and holding that in the era of virtual hearings, traditional forum non conveniens arguments are largely obsolete, as all locations are equally accessible online.

The defendants brought motions to strike the plaintiffs' statement of claim under rules 21.01 and 25.11 of the Rules of Civil Procedure.

The plaintiffs, a home builder and its principal, alleged various torts and statutory breaches against Tarion Warranty Corporation, several municipalities, CTV News, and a public health authority, claiming hundreds of millions of dollars in damages.

The court found the 40-page statement of claim to be unwieldy, repetitive, and deficient in pleading the necessary material facts for the alleged causes of action.

The court struck the statement of claim in its entirety, dismissing claims based on criminal statutes, the Competition Act, the Security of Information Act, intentional interference with economic relations, discrimination, and harassment without leave to amend.

However, the court granted the plaintiffs leave to move for an order permitting them to deliver a fresh statement of claim restricted to specific causes of action, including injurious falsehood, inducing breach of contract, civil conspiracy, and negligence, provided they can properly plead the required material facts.

The Plaintiffs (UDG) sought an anti-suit injunction to halt proceedings against them in Dubai and Singapore concerning an alleged outstanding debt and guarantees.

The Defendants (TAP) cross-moved to dismiss or stay the Ontario action for lack of jurisdiction or forum non conveniens, citing forum selection clauses.

The court denied the anti-suit injunction, finding UDG failed to meet the Amchem test, particularly by not pursuing stays in the foreign jurisdictions.

The court also found Ontario was not the natural forum, given the parties' residences, witness locations, and applicable foreign laws.

The Plaintiffs' Ontario action was permanently stayed.

The applicant commercial tenant sought a permanent injunction and relief from forfeiture after being locked out by the respondent landlord.

The landlord had terminated the lease due to the tenant's failure to remedy a persistent mould issue that was affecting an adjacent unit.

The court found that the tenant had not acted diligently or in good faith to repair the issue despite numerous opportunities.

The court dismissed the application for an injunction, finding the tenant barely established a serious issue to be tried, failed to show irreparable harm, and the balance of convenience favoured the landlord.

The court also denied relief from forfeiture due to the tenant's poor conduct and failure to come to court with clean hands.

The moving party sought reconsideration of the Court of Appeal's decision denying leave to appeal from a Divisional Court decision that upheld a Small Claims Court judgment in favor of the responding party for basement flooding damages.

The moving party relied on alleged fresh evidence and allegations of fraud.

The Court declined to admit the fresh evidence as it failed to satisfy the Palmer test, finding that most matters were dealt with at trial and the evidence was not reasonably capable of affecting the result.

The Court dismissed the motion for reconsideration, finding no basis to vary its earlier order.

The Court also granted an order prohibiting the moving party from bringing further motions without leave, finding the motion to be vexatious and an abuse of process.

The moving party sought a stay of proceedings pursuant to rule 63.02 of the Rules of Civil Procedure pending a motion for reconsideration of the Court of Appeal's dismissal of her motion for leave to appeal.

The underlying dispute involved a Small Claims Court judgment awarding damages to the respondent for flooding allegedly caused by the moving party's disconnected downspout.

The moving party appealed to the Divisional Court, which dismissed her appeal.

She then sought leave to appeal to the Court of Appeal, which was dismissed with costs.

The moving party subsequently sought a stay of enforcement of the judgment, claiming fresh evidence had been discovered.

The Court of Appeal dismissed the motion for a stay, finding that the moving party had not met the test for a stay and was attempting to re-litigate factual issues already decided at trial.

Following the dismissal of an appeal from the Small Claims Court, the successful respondent sought costs of $6,592.76 on a partial indemnity basis.

The appellant argued the amount was excessive and suggested $2,000.00.

Applying the principle of proportionality given the modest amount in dispute (less than $9,000.00), the court fixed costs payable to the respondent at $3,000.00 all-inclusive.

The plaintiff sought approval of a revised settlement in a class action regarding unpaid bank overtime.

The original settlement's claims process encountered difficulties, leading to a revised agreement where the defendant bank would pay an additional $20.6 million, bringing the total payout to $39.3 million.

The court approved the revised settlement, finding it fair, reasonable, and in the best interests of the class, despite some objections regarding the compensation bands.

The court also approved $2.3 million in legal fees for class counsel.