Harvin D. Pitch

The plaintiff appealed an order removing its law firm as solicitors of record due to a conflict of interest.

The firm had previously provided employment advice to a former employee of the defendants, who was originally named as a defendant in the action but later discontinued.

The motions judge found a risk that confidential information provided by the former employee could be misused.

The Divisional Court allowed the appeal, holding that because the former client had settled his issues and dropped his objection to the firm acting, there was no longer a basis to remove the firm to protect his confidential information.

A dissenting judge would have dismissed the appeal on the basis of maintaining public confidence in the administration of justice.

The appellants appealed a decision enforcing an arbitration award against them for breach of trust and oppression.

The respondents had entered into a sales agency agreement with the corporate appellant to distribute a film.

The directing mind of the corporate appellant restructured the film distribution operations, transferring assets to other companies and leaving the original corporation unable to remit distribution revenues owed to the respondents.

The Divisional Court dismissed the appeal, upholding the application judge's findings that the distribution revenues were trust funds, that the appellants were liable for knowing assistance in a breach of trust, and that the restructuring constituted oppressive conduct designed to defeat creditors.

The plaintiff purchaser moved for summary judgment seeking return of $1.2 million in deposits paid under an aborted real estate transaction, while the defendant vendor cross‑moved for summary judgment declaring its entitlement to retain the deposits.

The dispute centred on whether the vendor improperly refused to accept a proposed subordination and standstill agreement relating to secondary financing and thereby prevented closing.

The court held that the agreement of purchase and sale permitted secondary financing only if the secondary lender subordinated its rights to the vendor’s vendor‑take‑back mortgage and related security provisions, including an escrow deed provision and an escalator clause.

The purchaser’s proposed financing arrangements would have impaired those security rights and therefore did not comply with the contract.

The court concluded the purchaser failed to close and the vendor was entitled to retain the deposits.

The plaintiff and defendants entered into an agreement of purchase and sale for commercial properties for $36,000,000.

The agreement was conditional on the plaintiff obtaining approval to assume existing mortgages on terms satisfactory to the buyer in its 'sole and absolute discretion.' The plaintiff was unable to secure satisfactory terms from the mortgagees, declared the agreement null and void, and sought the return of its $2,000,000 deposit.

Both parties moved for summary judgment.

The court found that the plaintiff made a bona fide effort to complete the transaction and that the defendants' interpretation would render the 'sole and absolute discretion' clause meaningless.

The court granted summary judgment to the plaintiff, ordering the return of the deposit plus costs.

The plaintiff sought leave to appeal a motion judge's decision disqualifying its counsel of record due to an alleged conflict of interest.

The motion judge had disqualified the firm because it had previously represented a former employee of the defendants and obtained confidential information, despite acknowledging the defendants were not clients of the firm.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order since the defendants had not disclosed the information to the firm and were not clients, raising serious debate about the basis for disqualification.

The plaintiffs appealed a Master's order dismissing their $3 million professional negligence action against two law firms for delay at a status hearing.

The Master found three years of unexplained delay and concluded the plaintiffs failed to show the defendants would not suffer non-compensable prejudice if the action proceeded.

The Divisional Court upheld the Master's decision, confirming that the 'Faris test' for dismissal for delay is a strict two-step conjunctive test and rejecting the plaintiffs' argument for a third 'contextual' or 'just result' step.

The appeal was dismissed with costs.

In a certified class proceeding concerning allegedly defective hip implants, the court addressed issues relating to notice to class members and the identification of potential class members.

The court ordered the defendants to make reasonable efforts to locate names and addresses of implant class members contained in product adverse event reports and other related sources where the information was available and the province of residence was not British Columbia or Quebec.

However, the court declined to require an extensive manual internal review of all potential incident reports, finding such a requirement would be disproportionately burdensome and would not materially improve the notice program.

The court also determined the proper title for the certification notice and class counsel’s website, concluding that inclusion of the manufacturer’s name alongside the product identifier was reasonably necessary to inform the intended class.

The plaintiffs moved, on consent, for certification of a proposed medical device class action for settlement purposes, approval of a national settlement, and approval of class counsel fees under the Class Proceedings Act, 1992.

The action concerned allegations that surgical mesh hernia repair products were defectively designed and inadequately warned against, causing injuries due to device ring breakage or buckling.

The court found that the certification criteria under s. 5(1) of the Act were satisfied, noting an identifiable class and common issues regarding negligent design and failure to warn.

The court further held that the proposed $1.375 million settlement was fair, reasonable, and in the best interests of the class given significant litigation risks and the small number of qualifying claimants.

A 30% contingency fee and disbursements were also approved as reasonable in light of the work performed and the risks undertaken by class counsel.

Following certification of a proposed class action concerning recalled metal-on-metal hip implants, the court determined the appropriate costs award for the certification motion.

The plaintiffs, as the successful parties on certification, sought over $700,000 in partial indemnity costs.

The court found the claim grossly excessive due to over-lawyering, excessive hours, and hourly rates exceeding the applicable guideline ranges.

Applying Rule 57.01(1) of the Rules of Civil Procedure, guidance from appellate jurisprudence, and historical averages for certification motion costs awards, the court significantly reduced the claim.

The court emphasized transparency and predictability in costs awards and fixed costs at $175,000 all-inclusive payable forthwith.

The appellants brought a proposed class action against a washing machine manufacturer, alleging that its front-loading machines were defectively designed and prone to developing mould and unpleasant odours.

They sought damages for pure economic loss, asserting claims for breach of express and implied warranties, breach of the Competition Act, negligence, and waiver of tort.

The Court of Appeal upheld the motion judge's decision to dismiss the certification motion, finding that none of the claims disclosed a reasonable cause of action.

Notably, the court held that policy considerations negate recognizing a duty of care in tort for pure economic loss arising from a defective, non-dangerous consumer product.

The plaintiffs and four defendants (the Teskey defendants) sought leave to appeal a decision regarding the certification of a class action arising from a propane facility explosion.

The motions judge had refused to certify claims against the Teskey defendants in strict liability, nuisance, and under the Occupiers' Liability Act, but certified a claim in common law negligence.

The Divisional Court dismissed the plaintiffs' motion for leave to appeal, finding no reason to doubt the correctness of the refusal to certify those claims against the landlords.

The Court granted the Teskey defendants' motion for leave to appeal the certification of the common law negligence claim, finding good reason to doubt whether the landlords owed a duty of care to neighbours based on the lease provisions.

In a class proceeding arising from a major propane facility explosion, the plaintiffs sought to amend their statement of claim and certify claims against additional defendants associated with the ownership and leasing of the facility property.

The court considered whether the proposed amended pleading satisfied the s. 5(1)(a) requirement of the Class Proceedings Act by disclosing a reasonable cause of action.

Claims in strict liability and nuisance against the property-owning defendants were struck because the pleadings failed to meet the legal prerequisites and improperly characterized the alleged nuisance.

Negligence claims under the Occupiers’ Liability Act were also dismissed because the alleged damages occurred off the premises and the statute only applies to persons entering the premises.

However, the court held that the plaintiffs had properly pleaded a viable common law negligence claim based on the defendants’ alleged rights of control and failure to intervene in unsafe operations.

Certification against the remaining defendants proceeded solely on the basis of the common law negligence cause of action.

The plaintiffs brought a motion to certify a product liability class action against Whirlpool for pure economic losses related to allegedly negligently designed front-loading washing machines that were prone to biofilm buildup.

The court dismissed the certification motion, finding it plain and obvious that the plaintiffs had no tenable cause of action in contract, breach of statute, negligence, or waiver of tort.

Specifically, the court held that there is no recovery in negligence for pure economic losses for a shoddy but non-dangerous consumer product.

The plaintiffs sought certification of a proposed class action arising from explosions at a propane facility in Toronto that allegedly caused personal injury, property damage, and evacuation of nearby residents.

The court considered the certification requirements under s. 5 of the Class Proceedings Act, 1992.

It held that the pleadings against certain landlord defendants failed to disclose a viable cause of action because the allegations relying on agency, single‑group enterprise, and alter‑ego theories lacked material facts capable of piercing the corporate veil.

Those pleadings were struck with leave to amend and the certification motion against those defendants was adjourned.

The proceeding was otherwise certified as a class action against the remaining defendants, with common issues approved and representative plaintiffs appointed.

The successful appellant sought costs of the appeal and a stay motion.

The respondent and the Receiver argued that costs should be in the cause or paid from funds held in trust, citing special circumstances including the matter returning to the Superior Court and the Receiver managing the property without rent payments.

The Court of Appeal found no reason to depart from the usual rule that a successful party is entitled to costs forthwith, and awarded costs to the appellant payable jointly and severally by the respondent and the Receiver.

The appellant, Home Depot, appealed orders authorizing a receiver to sell a property free and clear of Home Depot's leasehold and equitable interests.

The motion judge had refused to draw inferences regarding whether the first mortgagee had impliedly consented to Home Depot's lease, stating he could only rely on undisputed facts.

The Court of Appeal allowed the appeal, holding that the motion judge erred in law by applying an incorrect standard of proof and failing to draw reasonable inferences from the evidence.

The matter was remitted for a new hearing.

The appellant appealed an order regarding an agreement of purchase and sale.

The Court of Appeal dismissed the appeal, finding that even if the 120-day notice requirement applied to the unit transfer date, the appellant had waived any right to rely on it through the representations of their counsel.

The cross-appeal was dismissed as abandoned, and costs were awarded to the respondent.

The appellant appealed a trial judgment awarding damages for breach of a commercial real estate agreement based on a 50 per cent lost chance of closing.

The Court of Appeal upheld the trial judge's findings on causation, the date of assessment, and the use of a discounted cash flow methodology.

However, the Court found the trial judge misapprehended evidence regarding the amortization of capital expenditures and directed a new trial solely on the issue of recovering certain management expenses.

The appellant condominium corporation appealed a decision dismissing its application to force a unit owner to remove a hot tub from his exclusive use common element backyard patio.

The application judge found that the hot tub was not an 'addition, alteration or improvement' under s. 98(1) of the Condominium Act requiring board approval.

The Court of Appeal upheld this interpretation, agreeing that the hot tub did not change the structure of the property or increase its value, and was analogous to a barbecue or patio furniture.

The appeal was dismissed.

The appellant appealed an order regarding the respondent bank's ability to sell a property.

The Court of Appeal noted that the bank's mortgage had been paid out and found it inappropriate to permit the sale before trial.

The court dismissed the appeal but ordered that the existing stay be continued pending the outcome of the trial to protect the positions of both parties.