Hugh R. Scher

The Court of Appeal for Ontario dismissed the appellants’ appeal regarding damages for breach of an agreement of purchase and sale.

The trial judge’s reliance on established authority and acceptance of the respondent’s evidence was upheld.

The court found no error in the trial judge’s assessment of damages or credibility findings and awarded costs to the respondent.

The Court of Appeal for Ontario dismissed the appeal from a judgment enforcing a settlement agreement in the context of a pending arbitration.

The appellants failed to pay the agreed amount by the deadline, triggering a penalty clause.

The court found no error in the application judge’s decision to proceed by application rather than action, in the finding that the respondents had not breached their obligations of good faith, or in the enforcement of the penalty clause.

The appeal was dismissed and costs awarded to the respondents.

The Noble Defendants brought a motion to dismiss or stay the action, alleging abuse of process due to the plaintiffs' failure to immediately disclose a settlement agreement (the "Bowen Agreement") with co-defendant David Bowen.

The court found that the plaintiffs failed to disclose key terms of the Bowen Agreement, which changed the adversarial dynamic between the plaintiffs and Bowen, thus constituting an abuse of process.

Despite the judge's personal reservations about the Noble Defendants' conduct, the court was bound by Court of Appeal jurisprudence to stay the action.

The motion to stay was granted.

This endorsement concerns the penalty phase of a civil contempt hearing.

The respondent, Vijai Ramkisson, was found in contempt for repeatedly refusing to attend an examination in aid of execution.

Despite having purged his contempt by eventually attending the examination and paying the judgment amount, the court found a need for denunciation and deterrence due to the blatant, deliberate, and wilful nature of his disobedience.

The applicants sought a fine of no less than $5000 and substantial indemnity costs.

The court imposed a fine of $2500 and awarded substantial indemnity costs of $27,500, emphasizing that a contemnor cannot unilaterally decide to disobey a court order.

The applicants brought a motion seeking a declaration of contempt against Vijai Ramkisson for his repeated failure to attend an examination in aid of execution, as compelled by a prior court order.

Ramkisson argued he lacked knowledge of the order until recently and intended to move to set aside the default judgment.

The court found Ramkisson in contempt, concluding that the order was clear, he had actual knowledge (at least from January 24, 2024, and likely earlier), and he intentionally failed to comply.

The court rejected his explanations as incredible and emphasized that an intention to set aside an order does not excuse non-compliance.

The penalty phase was bifurcated and deferred to allow Ramkisson an opportunity to purge his contempt by attending the examination.

This appeal concerned the dismissal of a proposed class action against Capital One and Amazon Web following a data breach.

The motion judge had struck the appellants' pleadings without leave to amend and dismissed their certification motion, finding the case 'doomed to fail'.

The Court of Appeal upheld the motion judge's decision, affirming that the pleadings failed to disclose viable causes of action for data misuse (intrusion upon seclusion, misappropriation of personality, conversion, breach of confidence/trust/fiduciary duty) and data breach (negligence, statutory claims).

The Court also upheld the decision to deny leave to amend the pleadings, citing repeated opportunities and the defective nature of the claims.

The appellants' motion for an extension of time to appeal costs was also dismissed.

The court issued a costs decision in an exceptional case following a carriage motion in a class action.

The Slapinski Action Consortium, though unsuccessful in the carriage motion, sought costs against the Del Giudice Action Consortium's counsel for non-compliance with a case management direction regarding simultaneous exchange of motion materials.

The court found that the Del Giudice Action Consortium's failure to comply with the simultaneous exchange rule prejudiced the court's ability to fairly decide the carriage contest, constituting a default under Rule 57.07.

Despite the Del Giudice Action Consortium's success on the carriage motion, the court awarded partial indemnity costs of $42,907 to the Slapinski Action Consortium, to be paid personally by the Del Giudice Action Consortium's counsel.

An appeal concerning a freedom of religion challenge to the medical and legal criteria for determining death.

The appellant's substitute decision-makers sought to prevent the withdrawal of life support and to rescind a death certificate based on the appellant's religious belief that death occurs only when the heart stops beating, not upon total brain death.

The Court of Appeal dismissed the appeal, upholding the application judge's conclusion that the claim could not succeed.

However, the court provided important guidance on the proper analytical approach to Charter rights and Charter values, clarifying that the appellant should have been presumed to be a Charter rights holder for purposes of the substantive analysis, and that the application judge erred in her methodology regarding freedom of religion analysis and Charter values application to the common law.

This application concerned the legal definition of death and the withdrawal of life support for Shalom Ouanounou, a devout Orthodox Jew, who was declared brain dead but whose family believed he was alive under Jewish law.

The applicant sought an injunction to prevent the withdrawal of life support, rescission of the initial death certificate, and a declaration that the Consent and Capacity Board had jurisdiction over such disputes.

Following Ouanounou's natural death, the court considered whether the application was moot.

Citing a recent decision in *McKitty v. Hayani*, which addressed similar issues, the court found the application moot as there was no longer a live controversy and declined to exercise its discretion to hear the academic issues.

The applicant, though unsuccessful in the main application concerning the determination of brain death and the withdrawal of life support, sought partial indemnity costs from the respondent physician, arguing the case involved significant public interest issues.

The respondent, who was successful, did not seek costs but argued for each party to bear their own costs.

The court acknowledged the public interest dimensions of the case, particularly regarding the common law definition of death and Charter rights, but found it did not meet the "truly exceptional" standard for special costs as set out in Carter v. Canada (Attorney General).

Crucially, the court noted a lack of authority for awarding costs to an unsuccessful litigant against a private individual respondent, as opposed to a government or public authority.

Consequently, the applicant's request for costs was denied, and parties were ordered to bear their own costs.

The plaintiff moved for leave to amend his Statement of Claim to add claims for punitive and aggravated damages, and for further discovery, after the action had been set down for trial.

The proposed amendments arose from the defendant's late production of an accident investigation report.

The defendant opposed the motion, arguing the plaintiff failed to seek leave under Rule 48.04 and that the amendments raised a statute-barred new cause of action.

The court granted the motion, finding the amendments merely provided new legal characterizations of existing claims rather than a new cause of action, and the defendant demonstrated no non-compensable prejudice.

The appellant appealed a family arbitration award that terminated a previously established education fund for the parties’ children and ordered the remaining funds returned to the parents.

The appellant argued procedural unfairness, an error in determining that the youngest adult child was not a “child of the marriage” due to disability, and a failure to apply constitutional and human rights norms requiring accommodation of disability.

The court held that the arbitrator applied the correct legal principles and reasonably concluded that the appellant had not proven the adult child met the statutory definition of “child of the marriage” under the Divorce Act at the relevant time.

The court also found no procedural unfairness in the arbitrator’s summary process and refused to admit fresh evidence regarding the child’s evolving educational plans.

The appeal was dismissed.

On a Rule 21 motion to strike in an international air carriage action, the court determined whether the Montreal Convention governed claims arising from in-flight conduct, disembarkation, police detention, and alleged illness.

The court held article 17 applied because the pleaded incident formed a continuous chain beginning on board and continuing through disembarkation, and qualified as an accident under the Convention.

Claims for psychological harm, mental distress, and punitive or exemplary damages were held unrecoverable under article 29 and settled jurisprudence where no compensable bodily injury was pleaded for those heads.

The claim for bodily injury based on alleged severe bronchitis was permitted to proceed.

The motion was therefore granted in part with the remaining claim limited to bodily injury damages.