Howard J. Wolch

The defendants brought a motion for security for costs in a construction lien action, alleging the plaintiff had insufficient assets.

The plaintiff did not assert impecuniosity or provide financial documents.

The court granted leave for the motion under s. 67(2) of the Construction Lien Act and ordered the plaintiff to pay $36,000 in security for costs in two installments, plus costs of the motion.

The defendants moved for non-destructive inspections of residential property in a termite and structural damage action arising from an alleged defective property transaction.

The court applied Rule 32.01 and held that inspections need only be necessary in the sense of being useful or probative of an issue, and that fairness favoured allowing the defendants to obtain responsive expert evidence where the plaintiff had already served expert reports.

Objections based on expert qualifications, delay, and the statutory limit on expert witnesses did not justify refusing the inspections.

The motions were granted, but no costs were ordered because the plaintiff's opposition was not unreasonable given the defendants' delay.

The appellant landlord appealed a trial judgment that found successive indemnifiers were not liable for increased rent during the extension period of a commercial lease.

The trial judge concluded that the indemnifiers were exposed to increased risk due to the higher base rent during the extension, which did not bind them.

The Divisional Court upheld the trial judge's decision, finding no error in his conclusion that the option to renew or extend the lease was neither exercised nor assigned, and therefore could not inform the reasonable expectations arising from the subsequent consent and indemnification agreement.

The appeal was dismissed.

The appellant appealed a Superior Court decision regarding the administration of an estate, and the respondent cross-appealed seeking the removal of the estate trustee.

The Court of Appeal varied the judgment to provide that all remaining funds be held back until the final passing of accounts, but otherwise dismissed the appeal.

The cross-appeal was dismissed as it was impractical to insert a new estate trustee on the eve of the passing of accounts.

The defendant brought a motion seeking further and better disclosure from the plaintiff, directions regarding a prior production order, and leave to amend its defence and counterclaim to include a defamation claim against the plaintiff and an additional party.

The plaintiff brought a competing motion seeking to strike the defence for non-compliance with a previous order, additional production including distribution agreements and accounting authorizations, and summary judgment dismissing the counterclaim.

The court ordered additional disclosure from the plaintiff subject to confidentiality but declined to require certain disproportionate productions, including telephone and email purchase requests.

Requests by the plaintiff for distribution agreements and direct communication with the defendant’s accountants were dismissed as unnecessary or premature.

Leave to amend the defence and counterclaim was granted and the plaintiff’s summary judgment motion was dismissed without prejudice pending completion of disclosure and discoveries.

A commercial landlord sought recovery of unpaid rent and damages from prior assignees and indemnifiers of a lease after the final tenant defaulted.

The defendants argued that subsequent assignments and amendments to the lease without their consent discharged their indemnity obligations.

The court held that mere assignment of the lease did not materially alter the risk to indemnifiers and did not release them.

However, a later amendment extending the lease at higher rent increased the indemnifiers’ risk and therefore terminated the indemnities after the original lease term ended.

The court awarded the landlord arrears owing as of the original expiry date, subject to credits for deposits and improperly handled chattels.

The defendant manufacturer brought a motion seeking relief from an earlier consent arrangement requiring it to maintain an exclusive distribution agreement with the plaintiff distributor pending further court order.

The court interpreted the earlier arrangement as permitting the matter to be brought back before the court and considered whether the plaintiff was entitled to an interlocutory injunction to maintain the agreement until trial.

Applying the test from R.J.R. MacDonald v. Canada (Attorney General), the court found that although there were triable issues regarding the duration and alleged breaches of the agreement, the plaintiff failed to establish irreparable harm and the balance of convenience did not favour injunctive relief.

The court emphasized that enforcing exclusive distribution agreements through injunctions can require ongoing judicial supervision of deteriorating commercial relationships.

The request for an interlocutory injunction was refused, though the agreement was temporarily maintained for 60 days to allow the distributor to transition its business.

The appellants appealed an order dismissing their application for pre-certification production of automotive pricing information from a non-party, JATO Dynamics Ltd. The appellants argued the motion judge applied the wrong test under Rule 30.10 of the Rules of Civil Procedure and ignored factors from the Ballard Estate decision.

The Court of Appeal found the motion judge conducted an appropriate Rule 30.10 analysis and properly exercised his discretion.

The appeal was dismissed with costs.

The appellants appealed an order finding that Ontario had jurisdiction over the plaintiffs' claims for breach of contract and fraudulent misrepresentation.

The Court of Appeal upheld the motion judge's finding that the claims fell within Rule 17(2) of the Rules of Civil Procedure, establishing a presumption of jurisdiction simpliciter based on a real and substantial connection to Ontario.

The Court also deferred to the motion judge's conclusion that Ontario was the convenient forum, noting the location of parties and witnesses.

The appeal was dismissed.

The appellants appealed an order upholding a master's decision concerning documentary production, redactions, and costs.

The appellants argued the respondents' motion to the master was an impermissible attempt to vary a prior order and sought to introduce fresh evidence regarding informant privilege.

The Court of Appeal dismissed the appeal, finding the master's prior order contemplated protective terms for productions and the fresh evidence did not defeat the informant privilege claim.

The appeal was dismissed with costs awarded to the respondents.

The appellants appealed the dismissal of their application for a declaration that sections 7(3)(d)(i) and 7(3)(h.2) of the Personal Information Protection and Electronic Documents Act (PIPEDA) violate section 8 of the Charter.

The Royal Bank of Canada had obtained information from the Toronto Dominion Bank regarding fraudulent mortgage transactions involving the appellants' trust accounts, which it used to obtain a Mareva injunction.

The Court of Appeal dismissed the appeal, finding that PIPEDA regulates private organizations and does not transform them into state agents, thus section 8 of the Charter was not engaged.

Furthermore, the appellants lacked a reasonable expectation of privacy in the records.

The tenant appealed an order of the Ontario Rental Housing Tribunal terminating her tenancy for failure to pay rent and refusing to set aside the termination order.

The tenant had a history of paying rent late due to the timing of her alimony cheques and had breached a previous conditional order requiring payment by the 10th of each month.

The Divisional Court found that the Board Member committed a breach of natural justice by failing to afford the tenant an opportunity to provide evidence or make submissions concerning relief from forfeiture under s. 84 of the Tenant Protection Act.

The appeal was allowed and the matter remitted for a new hearing.

The applicant sought judicial review of decisions by the Information and Privacy Commissioner denying him access to certain government and police records related to his 1982 prosecution for fraud.

The applicant sought the records for use in a civil action for malicious prosecution.

The Divisional Court dismissed the application, finding that the Assistant Commissioners reasonably applied the statutory exemptions for advice to government and personal privacy under FIPPA and MFIPPA.

The court affirmed that the applicant's private interest in civil litigation did not constitute a compelling public interest sufficient to override the privacy exemptions.

The appellants appealed a decision refusing to rectify Minutes of Settlement.

They argued the parties intended to include their respective house lots in the equalization of partnership assets.

The Court of Appeal upheld the motion judge's finding that there was insufficient evidence of a mistake at the time the Minutes were signed, as the document specifically addressed the lots.

The appeal was dismissed.

The appellant appealed a decision finding that his former solicitors' bills were final rather than interim and that there were no special circumstances to warrant an assessment.

The Court of Appeal dismissed the appeal, holding that the motion judge's conclusions were findings of fact supported by the evidence.

The appellant tenant, who suffered from schizophrenia, appealed an eviction order issued by the Ontario Rental Housing Tribunal.

The respondent landlord had issued notices of termination due to the tenant's screaming and disruptive behaviour.

The Divisional Court allowed the appeal, finding that the Tribunal erred by failing to apply the Human Rights Code.

The Court held that the Tribunal is bound to consider whether a disabled tenant can be reasonably accommodated without undue hardship to the landlord before exercising its discretion to evict under the Tenant Protection Act.

The eviction order was set aside on terms that the tenant's family be notified to intervene if disruptive behaviour occurs.

The appellants appealed a summary judgment granted in favour of the respondent Bank.

The Court of Appeal found no evidence of bias by the motion judge and concluded that the appellants received a fair hearing.

On the merits, the Court agreed there was no genuine issue for trial, as the Bank did not take possession of the property and acted in a commercially reasonable fashion when enforcing its security to collect the debt.

The appeal was dismissed with costs.

The appellants challenged a stay of their Ontario action arising from commercial loans financing a hotel, casino and beach club project in the Turks and Caicos Islands.

The Court of Appeal held that while the alleged tortious conduct of bank officers in Toronto created a substantial connection to Ontario, the overall circumstances established a more real and substantial connection to the foreign jurisdiction.

The court upheld the motion judge's conclusion that the foreign forum was the more natural, convenient and appropriate forum, given the governing law clause, administration of the loans, attornment to foreign proceedings, witness location, and risk of inconsistent findings.

The appeal was dismissed with costs.

The Governor in Council referred the question of whether David Milgaard's 1970 murder conviction constituted a miscarriage of justice to the Supreme Court of Canada.

The Court heard fresh evidence, including recanted testimony from a key trial witness and evidence of a pattern of sexual assaults by another individual.

The Court established guidelines for determining a miscarriage of justice and concluded that the fresh evidence, taken together with the trial evidence, could reasonably be expected to have affected the jury's verdict.

The Court advised the Minister of Justice to quash the conviction and direct a new trial.