H. Richard Bennett

The court considered motions regarding the limitation periods applicable to a counter-application and Family Law Act claims in the estate of Murray Gibbons.

Emilia Gibbons sought to dismiss Edward Gibbons' counter-application as statute-barred, while the respondents sought to dismiss Emilia's Family Law Act claims for the same reason.

The court found the counter-application was out of time and dismissed it, but granted an extension for Emilia's Family Law Act claims, allowing them to proceed.

The court considered motions regarding the limitation periods applicable to a counter-application and Family Law Act claims in the estate of Murray Gibbons.

Emilia Gibbons sought to dismiss Edward Gibbons' counter-application as statute-barred, while the respondents sought to dismiss Emilia's Family Law Act claims for the same reason.

The court found the counter-application was out of time and dismissed it, but granted an extension for Emilia's Family Law Act claims, allowing them to proceed.

The plaintiffs brought a motion for leave to amend their statement of claim in an action concerning an unpaid promissory note related to a share purchase agreement.

The defendant opposed several amendments on grounds of res judicata, expiry of limitation periods, pleading evidence, frivolousness, and inexplicable delay.

The court denied leave for amendments relating to an option agreement, finding them barred by res judicata as the issue had been finally determined in a prior summary judgment.

However, the court granted leave for the remaining amendments, including claims for breach of the duty of honest contractual performance, finding they arose from the same factual matrix and were not statute-barred.

The court also found the delay in seeking amendments was adequately explained and any presumed prejudice was rebutted.

The moving parties in a contested estate proceeding sought third-party production from FundEX, a mutual fund dealer where the estate trustee formerly worked as a financial advisor.

The moving parties alleged the estate trustee acted in a conflict of interest by holding dual roles.

FundEX resisted production, arguing Rule 30.10 does not apply to applications.

The court held that because a small claims action had been consolidated with the applications, Rule 30.10 applied.

The court also noted its jurisdiction under Rules 74 and 75 to order third-party production in contested estate matters.

FundEX was ordered to produce its compliance manuals and documents related to a regulatory investigation, but not communications involving the estate trustee, which should be sought from him directly.

The defendant broadcaster brought a motion for summary judgment to dismiss the plaintiffs' defamation action arising from a satirical television program broadcast in Pakistan and rebroadcast online.

The program allegedly accused the plaintiffs of engaging in immigration fraud related to a Canada-Pakistan Trade Fair, which the plaintiffs claim caused artists' visas to be denied and forced the cancellation of a concert.

The court dismissed the motion, finding genuine issues for trial regarding whether the broadcast was defamatory, whether the action was barred by the Libel and Slander Act given the technical nature of the internet broadcasts, and whether the broadcast caused the alleged damages.

The court also declined to dismiss the action for delay.

The plaintiffs sought costs thrown away after the trial was adjourned due to the defendant's late filing of an expert report and failure to comply with court orders.

The court found that the defendant's dilatory conduct necessitated several motions and case conferences, ultimately delaying the trial.

The court awarded the plaintiffs costs on a substantial indemnity scale, fixed at $11,983.48, payable within 21 days.

The appellant appealed orders from the Superior Court of Justice regarding a stock option agreement dispute.

The motion judge found that even if the appellant had terminated the respondent's consultant status, the appellant breached its obligation under Quebec law to execute the contract in good faith by failing to ensure the respondent retained a qualifying status under the stock option agreement that would have entitled him to exercise irrevocable stock options or to consider alternative arrangements.

The Court of Appeal upheld the motion judge's decision, finding no error in applying Quebec law and granting the appropriate remedy under Quebec law.

The appeal was dismissed with costs fixed at $25,000.00 all inclusive.

Following a finding that the defendant breached its duty of good faith by refusing to allow the plaintiff to exercise stock options, the court had to determine the appropriate remedy.

The parties' experts disagreed on whether Quebec law required specific performance or damages.

The court appointed an independent expert, former SCC Justice Louis LeBel, who concluded that specific performance was the appropriate remedy under Quebec law.

The court rejected the defendant's argument that Ontario law should apply as the lex fori, finding that the choice of remedy was substantive and governed by the lex causae (Quebec law).

The plaintiff was awarded specific performance and partial indemnity costs.

The plaintiffs brought a motion for summary judgment seeking damages for mental distress, alleging the defendant congregation breached a contract by failing to timely issue an Interment Rights Certificate.

The plaintiffs claimed this delay prevented them from obtaining an order to exhume their father's remains in Manitoba for re-burial in Ontario.

The court found that the certificate was not legally required to apply for the disinterment order under Manitoba's Public Health Act.

As the plaintiffs failed to prove the breach of contract caused the delay and resulting mental distress, the motion for summary judgment was dismissed.

Following the death of their mother, two sisters engaged in protracted and acrimonious estate litigation involving allegations of fraud and undue influence.

The parties eventually settled all substantive issues at mediation, agreeing to divide the estate equally, but left the issue of costs to be determined by the court.

The court found that the plaintiff had unreasonably escalated the litigation and ignored reasonable settlement offers.

Finding exceptional circumstances that justified a costs award despite the settlement, the court ordered the plaintiff to pay $75,000 in costs to the defendant.

The Plaintiffs sought summary judgment for a mandatory order directing the issuance of interment rights certificates, a permanent injunction, and damages for breach of contract related to burial plots for their parents.

The mandatory order was resolved by consent during the hearing.

The motion for a permanent injunction was dismissed due to insufficient evidence.

The court found the Minsk Congregation breached its agreement by failing to timely issue the interment rights certificate, causing the Plaintiffs prejudice in honouring their mother's wishes and Jewish customs.

Damages for loss of peace of mind were awarded to each Plaintiff against the Minsk Congregation, while the motion against Rabbi Spero was dismissed as he acted as an agent.

The defendants sought over $20,000 in costs after successfully obtaining directions to defer the plaintiffs' proposed summary judgment motion.

The costs claimed related to the motion itself and various informal appearances, including Case Conferences and Civil Practice Court.

The court denied costs for the Case Conferences, emphasizing that costs consequences for informal appearances should be rare to encourage access to justice and efficiency.

The costs of the motion itself were reserved to the judge who finally disposes of the action.

The plaintiffs sought to schedule a motion for summary judgment arising from the termination of a distributorship agreement shortly after they paid over $1 million to buy out a partner’s interest in the business.

The defendants opposed scheduling the motion, arguing that the dispute involved complex factual issues and incomplete discovery.

The court held that summary judgment is most appropriate where a discrete, determinative issue can resolve all or a substantial portion of the litigation.

Given the numerous pleaded causes of action, disputed contractual terms, and the need for discovery, the court found the proposed motion premature and unlikely to produce proportional savings in time or cost.

The plaintiffs were granted time to reformulate their motion around discrete issues; otherwise the matter would proceed through discovery and toward trial.

During a civil jury trial for defamation arising from a televised investigative documentary, the media defendants sought a ruling that the plaintiff’s claim for invasion of privacy should not be put to the jury.

The defendants argued that the Personal Information Protection and Electronic Documents Act constituted a complete legislative scheme precluding a common law privacy claim and that the tort of intrusion upon seclusion did not apply to journalistic publication.

The court held that PIPEDA does not oust the development of common law privacy claims and that media defendants are not categorically immune from liability for intrusion upon seclusion.

However, the scope of such claims is limited where journalistic activity engages freedom of expression and established defamation defences.

The court concluded that a properly instructed jury could potentially find an unlawful intrusion and therefore allowed the privacy claim to proceed to the jury with limiting instructions.

The proposed intervenors brought a motion to intervene as added parties in an application concerning the interpretation of an indemnity agreement.

The proposed intervenors were defendants in a related main action regarding environmental contamination, but were not parties to the indemnity agreement.

The court dismissed the motion, finding that the proposed intervenors had no direct interest in the subject matter of the application, would not be adversely affected by its outcome, and shared no common questions of law or fact with the parties.

The court also noted that intervention would likely complicate and delay the proceedings without providing a useful contribution.

The defendants brought a motion for security for costs under r. 56.01(1)(d) and (e) of the Rules of Civil Procedure, alleging the corporate plaintiffs lacked sufficient assets in Ontario and that the action was frivolous and vexatious.

During the lengthy motion, additional affidavit evidence from the plaintiffs’ accountant later demonstrated that the plaintiffs’ financial circumstances had improved, leading the defendants to withdraw the security for costs motion.

The remaining issue concerned costs of the motion.

The court held the defendants were justified in bringing the motion based on the initial lack of financial disclosure and the plaintiffs’ poor financial condition at the outset.

Costs of $15,000 were awarded to the defendants, partly because the court had granted the plaintiffs an indulgence by admitting late affidavit evidence.

A co-owner brought a partial summary judgment motion under the Partition Act seeking sale of three jointly held investment properties and payment of the proceeds into court.

The responding co-owner opposed the motion, arguing that a sale was inconsistent with the parties’ long‑term investment plan, that outstanding accounting claims and counterclaims should be resolved first, and that the moving party’s conduct was malicious and oppressive.

The court held that a co-owner has a prima facie right to partition or sale unless the opposing party establishes exceptional circumstances such as malicious, vexatious, or oppressive conduct.

Disputes over accounting, alleged debts, and disappointment in future investment plans were insufficient to displace that right.

The motion and a related application by trustees holding title to one property were granted, ordering the sale of the properties.

A commercial tenant brought an action alleging overpayment of additional rent and damages after disputes with its landlord concerning taxes, maintenance, and insurance charges under a net lease.

The landlord counterclaimed for unpaid rent and interest, relying in part on recalculated square footage measurements conducted years into the lease.

The court held that the landlord could not retroactively recalculate rent based on new measurements taken nine years into a ten‑year lease, and that the contractual square footage originally used by the parties governed.

The tenant failed to prove any improper TMI charges, while the landlord established entitlement to unpaid additional rent based on the original measurements.

Judgment was granted on the counterclaim for $118,761.68 plus interest accrued on funds paid into court.

The defendants brought a Rule 21.01 motion seeking an order barring the plaintiff from advancing personal injury damages arising from the death of her dog, arguing that psychiatric injury to the owner was not reasonably foreseeable and was too remote in law.

The plaintiff alleged negligent dispensing of medication caused the dog’s death and resulted in severe emotional trauma, nervous shock, and economic loss.

The court held it was not plain and obvious that the damages were unrecoverable and that issues of foreseeability, duty of care, and psychiatric injury required determination on a full evidentiary record.

The motion to strike the personal injury claims was dismissed.

However, the court granted the defendants’ alternative request for further examination for discovery and related production concerning newly disclosed economic loss reports.

The moving plaintiff sought to set aside a registrar's dismissal for delay and obtain leave to file a substantially expanded amended statement of claim in contamination litigation.

Applying a contextual approach under rule 37.14 and related jurisprudence, the court found the delay had adequate explanation in light of counsel changes, document-production disputes, and evolving contamination evidence.

The court also held the proposed amendments did not plead a new cause of action, and alternatively found limitation issues unsuitable for determination on a pleadings motion.

The dismissal order was set aside, leave to amend was granted subject to limitation defences, costs were fixed against one responding party, and costs as between the plaintiff and the railway were reserved to the trial judge.