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 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.

In a case conference endorsement, the court addressed two procedural issues: the plaintiffs' request for all defendants to attend judicial mediation in person, and the defendants' request for leave to bring a motion to resolve approximately 150 discovery objections made under Rule 34.12.

The court declined to compel attendance at mediation, noting that sophisticated commercial parties should negotiate such matters themselves.

Regarding discovery objections, the court denied leave for a pre-trial motion, emphasizing the principles of proportionality, efficiency, and affordability articulated in Hryniak v Mauldin.

The judge stressed that rulings on admissibility under Rule 34.12 are best made by the trier of fact at trial or summary judgment, and that counsel should focus on material objections rather than engaging in expensive interlocutory motions.

An extension for setting the action down for trial was granted by consent.

The defendants brought a motion to compel the plaintiffs to answer approximately 58 refusals arising from an examination for discovery.

The underlying action involves claims of breach of a dealership agreement, trademark infringement, and false warranty claims.

The court applied the principles of relevance and proportionality under the Rules of Civil Procedure.

The court ordered the plaintiffs to make further inquiries regarding a specific networking trip and to produce targeted reports related to alleged false warranty claims, but dismissed the defendants' requests for broader electronic searches and financial records as disproportionate.

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.

Following a successful motion by the plaintiffs to compel the defendants to answer undertakings and refusals, the court determined the appropriate costs award.

The plaintiffs sought $35,000 representing 70% of their full indemnity costs, while the defendants argued the parties should bear their own costs or pay $5,000.

The court found no basis to depart from the general rule that costs follow the event, but declined to award costs on a substantial indemnity scale as the defendants' conduct was not reprehensible.

The court fixed costs at $26,000 payable by the defendants to the plaintiffs.

The Plaintiffs brought a motion to compel the Defendants to answer undertakings, questions taken under advisement, and refusals from examinations for discovery, and to serve a further affidavit of documents and re-attend discovery.

The Master, applying principles of proportionality and relevance, granted most of the Plaintiffs' requests, ordering the Defendants to provide specific information and documents related to warranty claims, alleged trademark/copyright infringement damages, corporate affiliates, sales data, and customer information.

Some requests were dismissed as disproportionate or already addressed.

The Master also ordered the Defendants to provide outstanding Lawyer's Certificates and re-attend discovery.

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 defendant sought leave to appeal an order dismissing its motion for partial summary judgment regarding a share option claim.

The motion judge had granted the plaintiffs partial summary judgment on the claim, applying Quebec law to find the defendant breached its duty of good faith.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision, which was based on factual findings and expert evidence on Quebec law.

The moving party, Dr. Chandra, sought an extension of time to file a notice of appeal from a jury verdict dismissing his $130 million libel and invasion of privacy action against the CBC.

The jury had found that the defamatory broadcast alleging scientific fraud was true.

The Court of Appeal denied the extension, finding that the moving party failed to form a timely intention to appeal, provided no satisfactory explanation for the delay, and that the proposed appeal lacked merit.

The court also noted the moving party's lack of candour and attempts to encumber his only Ontario asset, concluding that the justice of the case required dismissing the motion.

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 appellant, an auto glass repair company, appealed a summary judgment dismissing its action against the respondent insurer for breach of contract and intentional interference with economic interests.

The appellant claimed it had obtained assignments from insureds to receive direct payments for windshield repairs at a market rate of $100, but the insurer only paid $50 per repair.

The Court of Appeal upheld the motion judge's finding that individual contracts were formed between the repair company and the insurer for each repair at the specified $50 rate, and that the purported assignments were ineffective because the insureds had paid nothing and had no claim against the insurer to assign.

The appeal was dismissed.

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.