Howard A. Levitt

The Justice Centre for Constitutional Freedoms (JCCF) appealed a motion judge's order requiring it to pay $156,461.99 in costs following an unsuccessful interlocutory injunction motion brought by students against Seneca College's COVID-19 vaccination policy.

The Court of Appeal found the costs order fundamentally flawed because the motion judge failed to determine if the litigation was public interest litigation and did not apply the correct legal tests for awarding costs against a non-party (the "person of straw" test or abuse of process).

The Court clarified that fundraising or promoting a case on a website does not constitute abuse of process.

The Court also stated that JCCF's refusal to disclose whether it was indemnifying the students was a relevant consideration for costs.

The appeal was allowed, the costs order set aside, and the matter remitted to the motion judge for a fresh determination.

The appellant appealed a trial judge's decision, arguing that his responsibilities had changed following the hiring of a new senior employee, which he contended amounted to a constructive dismissal.

The Court of Appeal dismissed the appeal, finding that the appellant's argument directly contradicted the trial judge's factual findings.

The trial judge had expressly found that the appellant maintained his role as general manager, that there was no change in the company's hierarchy, and no evidence of a change in his remuneration or bonus package.

The appellate court concluded that the trial judge made no legal error and that her well-supported factual findings were fatal to the appellant's position.

The appellant union appealed an injunction granted during a labour dispute that had enjoined a blockade of the employer's premises.

The union had admitted the illegality of their actions and irreparable harm.

The appeal argued that the injunction's terms unnecessarily restrained lawful strike activity.

The Court of Appeal dismissed the appeal as moot because the underlying dispute had been settled.

The court declined to exercise its discretion to hear the moot appeal, finding the motion judge's decision was fact-specific and did not raise questions of public importance beyond the resolved dispute.

Following the dismissal of the defendant's motion to strike a Notice of Examination, the parties made written submissions on costs.

The plaintiff sought substantial indemnity costs of $84,621.20, arguing the defendant's conduct was reprehensible.

The defendant argued for partial indemnity costs of no more than $30,000.

The court found the defendant's conduct did not warrant elevated costs and awarded the plaintiff partial indemnity costs in the all-inclusive amount of $45,000.

The defendant brought a motion to strike the plaintiff's notice of examination for discovery of the defendant's president, Linda Kuga, and sought to substitute Alessandro Mendes, Vice-President of Research and Innovation, as the corporate representative.

The court dismissed the defendant's motion, finding that the defendant failed to discharge its onus to show that Ms. Kuga was an inappropriate corporate representative.

The court applied the three-factor test for substituting a corporate representative, concluding that Ms. Kuga was sufficiently knowledgeable, it would not be oppressive to examine her, and the plaintiff would be prejudiced by examining a less knowledgeable subordinate.

The defendant, Corus Entertainment Inc., brought a motion under Rule 21.01(1) of the Rules of Civil Procedure to strike the plaintiff's Statement of Claim, arguing it disclosed no reasonable cause of action and was statute-barred by the Limitations Act, 2002.

The plaintiff, a former employee, claimed Corus breached a retirement agreement by reducing monthly Supplementary Executive Retirement Plan (SERP) payments.

The court found that the jurisprudence regarding limitation periods for periodic payments was unsettled and fact-dependent, making it not "plain and obvious" that the plaintiff's claim had no reasonable prospect of success.

The motion to strike was dismissed, and costs were awarded to the plaintiff.

The plaintiff, Kevin Skov, brought a motion for summary judgment in his wrongful dismissal action against G&K Services Canada Inc. and G&K Services, Inc. The central dispute revolved around the plaintiff's character of employment, which was relevant to both the reasonable notice period and the plaintiff's mitigation efforts.

The court found that there was a genuine issue requiring a trial regarding the character of employment and its impact on mitigation, which could not be resolved using the enhanced summary judgment powers without further fact-finding.

Consequently, the court ordered a mini-trial on the issue of the plaintiff's character of employment.

The applicant, Altus Group Limited, sought to set aside an arbitration award in favor of the respondent, 3GS Incorporated, on the grounds of fraud.

Altus alleged that a key witness for 3GS, Lisa Robbins, lied under oath about her criminal convictions during the arbitration.

The court found that Ms. Robbins did indeed give dishonest testimony regarding her criminal record.

However, the court ultimately dismissed the application, concluding that Ms. Robbins' fraudulent evidence was not material to the outcome of the arbitration, as the arbitrator's decision was primarily based on Altus's own knowledge and concealment of its breach, and the credible testimony of 3GS's principals, Alan and Ann Gordon, which was untainted by Ms. Robbins' dishonesty.

Following a pleadings motion in which the defendant successfully obtained an order striking certain paragraphs of the plaintiff’s statement of claim, the court determined the appropriate costs award.

The defendant sought substantial indemnity costs exceeding $26,000, while the plaintiff argued the request was excessive and proposed partial indemnity costs between $4,500 and $5,500.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality and the objective of fixing fair and reasonable costs for the unsuccessful party to pay.

The court concluded the defendant was largely successful but that the claimed amount was excessive given the nature of the motion and the materials filed.

Partial indemnity costs were therefore reduced and fixed at $8,500 inclusive of HST and disbursements.

The defendant brought a motion under Rule 25.11 of the Rules of Civil Procedure seeking to strike numerous paragraphs from the plaintiff’s statement of claim on the basis that they were irrelevant, scandalous, frivolous, vexatious, or otherwise non‑compliant with pleading rules.

The action concerned an employment dispute in which the plaintiff alleged breach of an employment agreement and entitlement to compensation under a long‑term incentive plan.

The court held that many paragraphs contained extensive background allegations about corporate structure, family relationships, and alleged misconduct that were largely irrelevant to the contractual dispute and would unnecessarily complicate the litigation.

Applying established principles governing pleadings, the court struck the majority of the impugned paragraphs but allowed certain limited background and compensation‑related paragraphs to remain.

The plaintiff was ordered to file and serve a fresh amended statement of claim consistent with the decision.

The plaintiff sued for wrongful dismissal after termination without cause, while the defendant later alleged fraudulent pre-employment misrepresentations as just cause.

The court rejected the just cause defence, found six months of reasonable notice, accepted most claimed compensation items, rejected mitigation arguments, and awarded damages.