H. Richard Bennett

During a defamation trial, the plaintiff brought a motion to read into the record an affidavit sworn by a deceased witness.

The defendants opposed the motion, arguing the affidavit was inadmissible hearsay.

The court applied the principled exception to the hearsay rule, finding that the affidavit met the requirement of threshold reliability.

The motion was granted, and the affidavit was admitted with a mid-trial instruction to the jury regarding its weight.

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.

On cross-motions for summary judgment and summary dismissal, the court rejected a windshield repair company's claim for additional payment beyond the specific amounts authorized by an insurer for thousands of repairs.

The court held that each repair was governed by a separate contract formed when the insurer authorized the work at a stipulated rate and the plaintiff performed it without renegotiation.

The purported assignment language in the work order did not assign the insurance policy, and the insureds had no enforceable monetary claim to assign where the repairs had been completed at no cost to them.

The plaintiff's reliance on an asserted market rate was irrelevant, and the action was summarily dismissed.

This was a standalone costs decision arising from a partial summary judgment motion under the Partition Act and a related application authorizing sale of one of three disputed properties.

The court declined to award costs on the partition motion, holding that each sibling should bear their own costs in light of their conduct, the interlocutory nature of the dispute, and unresolved merits in the larger litigation.

The court awarded the parents full indemnity costs on their successful application because they had been drawn into a dispute in which they played no part and should not have had to sue their own children to disengage from title.

The unsuccessful daughter was ordered to pay $36,634.81 within 45 days, without awaiting the sale proceeds.

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.

In a commercial landlord–tenant dispute concerning a hair salon lease, the tenant moved to amend or vary a prior interlocutory order requiring monthly payments into court toward disputed additional rent arrears.

The action had been set down for trial, raising a question whether leave was required under Rule 48.04 of the Rules of Civil Procedure.

The court held that leave was unnecessary in the circumstances, and alternatively granted leave.

Applying Rule 59.06(1), the court found the earlier order had not adjudicated the scenario where trial would occur after lease termination and amended the order so that the tenant’s $4,000 monthly payments into court terminated on July 31, 2013.

The tenant was awarded $10,000 in costs.

The appellant bank appealed a decision dismissing its action against a guarantor.

The guarantor had provided a continuing all accounts guarantee for a corporate loan, receiving independent legal advice.

The bank subsequently increased the loan amount without obtaining a new guarantee or notifying the guarantor.

The Court of Appeal allowed the appeal, finding that while the loan increases were material alterations, the clear language of the guarantee permitted the bank to increase the loan amount and change terms without discharging the guarantor.

The guarantor had contracted out of common law protections.

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.

A bank sought summary judgment to enforce a personal guarantee provided by a spouse of the principal of a borrowing company.

The guarantor cross‑moved for summary judgment declaring the guarantee unenforceable after the lender repeatedly replaced and expanded loan agreements without notifying or obtaining consent from the guarantor.

The court held that the successive loan agreements materially altered the risk assumed under the guarantee and that the guarantor, as an accommodation surety, was entitled to notice and consent for such variations.

Because the lender failed to obtain a fresh guarantee or consent when the loan facility increased and prior agreements were terminated and replaced, the guarantee was unenforceable.

Summary judgment was granted in favour of the guarantor and the lender’s motion against her was dismissed.

The appellants appealed a summary judgment enforcing a promissory note.

The Court of Appeal dismissed the appeal, finding that forbearance from making a demand on guarantees constituted valid consideration for the promissory note.

The court agreed with the motion judge's interpretation of the note as the only commercially viable one and found no triable issue regarding whether a prior demand had been made on the guarantees.

The defendant sought leave to appeal a decision refusing to set aside a certificate of pending litigation (CPL) in favour of the plaintiff.

The motion judge had found it arguable that the plaintiff, a limited partner, had a reasonable claim to an interest in the property through a constructive trust.

The Divisional Court found that while there was good reason to doubt the correctness of the motion judge's decision, the proposed appeal did not involve matters of such importance to warrant granting leave, as the motion judge had merely found the legal propositions to be arguable rather than making new law.

Leave to appeal was refused.

A load broker made a voluntary assignment in bankruptcy.

Prior to bankruptcy, it had co-mingled moneys received from shippers instead of segregating them in a trust account for carriers as required by the Load Brokers Regulation.

After bankruptcy, the trustee collected moneys owed by shippers and held them in a separate account.

A carrier sought payment of its outstanding accounts from these segregated funds.

The motion judge held that the funds satisfied the conditions for a trust and must be paid to the carrier, excluding them from distribution to creditors under the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the trustee's appeal, confirming that the statutory trust obligations apply to a trustee in bankruptcy who collects and segregates carrier fees.

The appellant corporation appealed a partial summary judgment order.

The president and CEO of the appellant corporation had pledged shares as security for a loan advanced by the respondent, representing that all was in order despite a notice of restriction on the transfer of the shares.

The Court of Appeal dismissed the appeal, holding that under section 19 of the Business Corporations Act, the corporation could not rely on its own non-compliance with its articles and by-laws to defeat the claim, as there was no evidence the respondent knew or ought to have known of the non-compliance.

The appellants appealed an order striking their counterclaim, which sought punitive damages based on an independent actionable wrong akin to defamation arising from allegations in the respondent's statement of claim.

The Court of Appeal dismissed the appeal, affirming that allegations in a statement of claim are absolutely privileged and cannot form the basis of such a counterclaim.

The appeal was dismissed with costs fixed at $5,000.