Howard B. Borlack

The plaintiff, a solar power installation company, sued the Ontario Power Authority (OPA) for misfeasance in public office.

The plaintiff alleged that the OPA unlawfully amended the microFIT Program rules without providing the required 90 days' notice, intentionally causing harm to the plaintiff's business.

The Superior Court of Justice dismissed the action, finding that the OPA did not engage in deliberate unlawful conduct or act with bad faith.

The court held that the OPA acted in good faith to balance ratepayer interests and implement Ministerial directives regarding renewable energy procurement.

Although the court assessed potential damages at $470,250, no liability was found.

The respondent brought a motion to add WSP Canada Inc. as a defendant in an ongoing negligence action arising from the rehabilitation of a bridge.

The motion judge granted the motion, finding that the respondent's claim against WSP was not statute-barred under the Limitations Act, 2002 because the claim was not reasonably discoverable within the two-year limitation period.

WSP appealed to the Court of Appeal.

The Court of Appeal quashed the appeal for lack of jurisdiction, holding that the motion judge's order was interlocutory rather than final.

The motion judge's determination regarding the limitation period was made solely for purposes of deciding the motion to add a party and did not finally determine the limitations issue, which could be relitigated at trial.

The appellants appealed a motion judge's decision interpreting a landlord-tenant agreement as a complete release of the tenant from liability for fire damage.

The appellants argued the release applied only to the tenant personally but preserved a subrogated claim by the landlord's insurer against the tenant's insurer.

The Court of Appeal upheld the motion judge's interpretation, finding that releasing the tenant precluded any subrogated claim against the tenant's insurer.

The appeal was dismissed with costs awarded to the respondent.

The appellant, Western Troy Capital Resources Inc., retained the respondent, Genivar Inc., an engineering consulting firm, to conduct a feasibility study for a mineral property at MacLeod Lake in Northern Quebec.

The trial judge found that Genivar breached its duty of care and made negligent misrepresentations, awarding damages of $1.25 million.

On appeal, Western Troy sought to increase the award to approximately $2.97 million or $2.15 million, arguing the trial judge failed to adequately explain his damages assessment.

The Court of Appeal upheld the trial judge's award, finding it was firmly grounded in evidence and that the trial judge properly considered speculative elements including the timing of when the resources estimate should have been completed, which expenses would have been incurred regardless, and the likely reaction of Western Troy's management to a timely report.

The appellants (Mastron entities) appealed a motion judge's order that refused to dismiss third and fourth party claims and granted leave nunc pro tunc to Genivar to issue its fourth party claim.

The motion judge held that an order by Hackland J. dated December 10, 2013 was intended to continue the proceedings under the ordinary track rather than under the Construction Lien Act.

The appellants argued the motion judge erred in granting leave nunc pro tunc because the two-year limitation period for commencement of the fourth party claim had expired.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly interpreted Hackland J.'s order as continuing the action on the ordinary track, since the third party claim included claims for breach of contract and negligence in addition to contribution and indemnity, which could only proceed under the ordinary track.

The plaintiff moved for a further examination for discovery of the corporate representative of the New Vector defendants.

The initial examination was aborted because the representative produced had no personal knowledge, failed to prepare, and defence counsel improperly obstructed questioning.

The court found that the defendant's conduct in thwarting discovery constituted special circumstances justifying a second examination.

The motion was granted, and the defendant was ordered to produce a properly prepared representative and pay substantial indemnity costs of $35,000.

The plaintiffs brought a motion for summary judgment under Rule 20 of the Rules of Civil Procedure seeking to enforce a judgment under s. 258 of the Insurance Act against an insurer alleged to have issued a motor vehicle liability policy to the tortfeasor responsible for a catastrophic 1992 motor vehicle accident.

The plaintiffs relied on circumstantial evidence, including an accident report listing a policy number, licence plate renewal applications, correspondence with insurers, and an affidavit from the tortfeasor’s daughter.

The court held that the evidentiary record was insufficient to establish on a balance of probabilities that the tortfeasor held a motor vehicle liability policy with the alleged insurer at the time of the accident.

Because the existence of such a policy was not proven, the remaining issues concerning assumption of liability, limitation defences, and damages were unnecessary to determine.

The motion for summary judgment was dismissed.

The appellants appealed an order dismissing their action as an abuse of process.

The motion judge found that the appellants could have raised their allegation of being specifically targeted in prior judicial review proceedings regarding the FIT program.

The Court of Appeal upheld the decision, confirming that the abuse of process doctrine applies to issues that could have been determined in earlier administrative processes, and found no error in the motion judge's refusal to exercise her discretion to allow the action to proceed.

The moving parties sought to dismiss an application challenging a continuing power of attorney and seeking various related remedies on the basis of res judicata.

They argued that similar issues had already been raised in related proceedings and resolved through minutes of settlement.

The court held that the doctrine of res judicata requires a final judicial determination between the same parties or their privies, and that a private settlement agreement without a court order does not constitute such a determination.

Because the responding party was not a party to the settlement and no judicial decision resolved the issues, the prerequisites for cause of action estoppel or issue estoppel were not met.

The motion to dismiss the application was therefore denied.

A receiver appealed from summary judgment dismissing its claim for indemnity under a trustee's errors and omissions policy after obtaining judgment against the insured trustee for breach of trust.

The court held that the insurer was entitled to rely on the dishonest acts exclusion because the trustee deliberately breached the trusts, knowingly exposed the beneficiaries to risk, and misappropriated trust funds for its own benefit.

The court further held that a prior order assigning to the receiver the 'proceeds from insurance coverage' did not assign the insured's separate cause of action for breach of the insurer's duty of good faith.

The receiver also had no direct good faith claim against the insurer, although it could return to the motion judge to seek directions on any other remedy if the insurer had deliberately frustrated the prior order.

The plaintiff, an Ontario resident, brought an action in Ontario alleging a conspiracy by the defendants to use fraudulent bankruptcy proceedings in Quebec to defeat the process of the Ontario courts.

The defendants moved to dismiss or stay the action on jurisdictional grounds, and the trustee in bankruptcy moved for a stay because the plaintiff failed to obtain leave under s. 215 of the Bankruptcy and Insolvency Act.

The Court of Appeal upheld the motion judge's finding that Ontario had jurisdiction simpliciter and was not forum non conveniens.

However, the Court allowed the trustee's appeal in part, holding that the action against the trustee must be stayed until the plaintiff obtains leave from the Quebec Superior Court.

The Court of Appeal for Ontario issued a costs endorsement following the hearing of two appeals.

The Van Breda respondents and the Charron respondents were each awarded costs fixed at $45,000, inclusive of disbursements and GST.

The respondents Hola Sun Holidays Limited and Bel Air Travel Group Ltd. were each awarded costs fixed at $10,000.

No costs were ordered for or against the interveners.

The appellants, out-of-province resort operators, appealed decisions dismissing their motions to stay or dismiss personal injury actions for want of jurisdiction.

The Court of Appeal convened a five-judge panel to reconsider the Muscutt test for assumed jurisdiction.

The Court modified the Muscutt test by elevating the weight given to Rule 17.02 of the Rules of Civil Procedure, creating a presumption of a real and substantial connection for most of its subrules.

The Court also collapsed the fairness factors and clarified the distinction between jurisdiction simpliciter and forum non conveniens.

Applying the revised test, the Court found a real and substantial connection between Ontario and the appellants in both cases and upheld the motion judges' decisions that Ontario was the appropriate forum.

Following the dismissal of 42 consolidated motions for leave to appeal costs awards in 37 class actions, the respondent insurers sought costs totalling $345,349.36.

The Court of Appeal assessed the bills of costs submitted by various law firms representing the insurers.

Applying the principle that costs must be fair and reasonable rather than a strict mathematical calculation of hours times rates, the Court reduced the amounts claimed, noting that the complexity was procedural rather than legal or factual.

The Court fixed the total costs payable to the insurers at $141,645.26.

Following the dismissal of several class actions against automobile insurers, the court determined the issue of costs.

The plaintiffs, who had relied on a previous Court of Appeal decision that was subsequently reversed, sought their costs despite being unsuccessful, citing disastrous financial consequences for their contingency-fee counsel.

The successful insurers sought their costs on a partial indemnity scale.

The Court of Appeal declined to award costs to either side.

The court held that the Class Proceedings Act was not intended to insulate unsuccessful plaintiffs from costs, but also found that the insurers should not receive costs because the litigation constituted a test case and the plaintiffs had reasonably relied on the court's own prior jurisprudence.

The appellants and the Law Foundation of Ontario sought leave to appeal costs orders made by the case management judge following the dismissal of several proposed class actions against automobile insurers.

The motion judge had awarded costs to the successful insurers, including substantial indemnity costs where the plaintiffs persisted with unsubstantiated allegations of fraud and deceit to overcome limitation periods.

The Court of Appeal dismissed the application for leave to appeal, finding no error in principle in the motion judge's exercise of discretion regarding entitlement or scale of costs.

The appellant appealed a trial judgment finding an enforceable agreement to pay a success fee and assessing damages.

The Court of Appeal dismissed the appeal, holding that the trial judge did not err in finding an agreement and that her assessment of damages, based on factors such as amounts typically paid to investment bankers, time spent, and value added, was reasonable.

The appellants, automobile insurers, appealed the dismissal of their motions to dismiss class proceedings brought by the respondent insureds.

The insureds claimed that the insurers breached statutory condition 6(7) by reducing their actual cash value payments by the policy deductible when taking title to the salvage in total loss claims.

The motion judge, bound by the Court of Appeal's previous decision in McNaughton, dismissed the insurers' motions.

A five-judge panel of the Court of Appeal held that McNaughton was wrongly decided, as statutory condition 6(7) does not quantify the insurer's payment obligation but merely gives the option to acquire salvage.

The Court overruled McNaughton, allowed the appeals, and dismissed the insureds' actions.

The appellant appealed an order of the Superior Court of Justice in a CCAA proceeding.

The Court of Appeal dismissed the appeal, agreeing with the reasoning of the motion judge, and awarded costs of $10,000 to the respondents.

The appellants appealed a summary judgment order.

The Court of Appeal allowed the appeal, finding triable issues regarding whether the president of Lason Canada had a duty to disclose off-balance sheet payments and whether he participated in including tailwind revenues, both of which allegedly inflated the EBITDA calculation.

The summary judgment was set aside and the motion dismissed.