Hugh R. Scher

This five-judge appeal reconsidered the common law governing non-disclosure of partial settlement agreements in multi-party civil litigation.

The court held that the prior rule mandating an automatic finding of abuse of process and an automatic stay, without proof of prejudice or regard to proportionality, was wrongly decided and should be overruled.

The proper approach requires a contextual and discretionary abuse of process analysis focused on unfairness, prejudice, oppression, harm to the administration of justice, and a proportionate remedy, with r. 49.14 of the Rules of Civil Procedure reinforcing that framework.

Applying that approach, the court allowed two appeals and remitted those matters, while dismissing two others where the record was sufficient to determine the result.

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 landlord applied to the Landlord and Tenant Board to terminate the tenancy and evict the tenant for seriously impairing safety by covering smoke detectors.

The LTB issued an eviction order following a hearing the tenant did not attend.

The tenant's request for review was dismissed.

On appeal to the Divisional Court, it was revealed that the LTB had no record confirming service of the Notice of Hearing on the parties.

The court found the tenant was denied procedural fairness, allowed the appeal, and set aside the eviction order.

Given the tenant's failure to pay rent since 2019, the court directed the LTB to hold an expedited consolidated hearing for all pending applications between the parties.

The tenants appealed from interlocutory orders of the Landlord and Tenant Board, arguing that their notice of appeal automatically stayed the proceedings, including a review of an eviction order.

The Divisional Court held that section 210 of the Residential Tenancies Act, 2006 does not confer a right of appeal from an interlocutory order, and therefore the appeal did not stay the proceedings.

The court also found that the tenants were not denied procedural fairness, as they deliberately chose not to attend the review hearing.

The appeals were dismissed.

The moving parties sought leave to appeal a costs order.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs of the motion were fixed at $5,000 payable by the moving parties.

Following the dismissal of a proposed $240 billion class action regarding a data breach, the successful defendants sought costs.

The plaintiffs argued costs should be limited to a partial indemnity scale for a pleadings motion.

The court found that the plaintiffs' unsubstantiated allegations of professional misconduct against defence counsel, combined with their egregious violations of pleading rules and massive expansion of the claim, justified costs on a substantial indemnity basis.

The court awarded $725,000 to Capital One and $500,000 to Amazon Web.

The court reconsidered a previous costs award of $112,500 made against the plaintiffs following the dismissal of their refusals and interlocutory injunction motions in a proposed class action regarding a data breach.

The plaintiffs argued the defendants' costs claim reflected over-lawyering and sought costs in the cause.

The court rejected the plaintiffs' submissions, finding their motions were unnecessary, overreaching, and deplorably prosecuted.

The court confirmed the original partial indemnity costs award of $112,500 and awarded an additional $12,500 for the costs submissions, for a total of $125,000 payable to the defendants.

The plaintiffs in a proposed class action regarding a data breach sought court approval to settle and discontinue their claims against the defendant GitHub.

GitHub, an American corporation, had challenged the court's jurisdiction.

After an initial adjournment to address jurisdictional concerns, the plaintiffs submitted revised materials.

The court approved the settlement, finding that discontinuing the action against GitHub was fair, reasonable, and in the best interests of the class given the litigation risks, costs, and the fact that the remaining defendants had sufficient financial strength to meet any damages.

Following the dismissal of the defendants' motion for partial summary judgment, the parties made written submissions on costs.

The plaintiff sought costs exceeding full indemnity, while the defendants argued for costs in the cause or a reduced amount due to the plaintiff's delay.

The court found that the defendants did not act in bad faith or unreasonably in bringing the motion, noting that the delay was largely attributable to the plaintiff's counsel.

The court awarded the plaintiff costs on a partial indemnity scale, fixed at $25,735.54.

The plaintiffs in a proposed class action regarding a data breach sought court approval of a settlement with the defendant GitHub.

The court declined to approve the settlement as proposed, noting that it could not make a binding ruling on its own jurisdiction based on the consent of the parties, and that the substantive merits of the settlement (essentially a discontinuance) did not support approval at this stage.

At the parties' request, the motion was adjourned sine die.

The plaintiff sued his former employer and three individual managers for wrongful dismissal, moral damages, punitive damages, and intentional infliction of mental suffering, alleging workplace harassment and reprisal.

The defendants brought a motion for partial summary judgment to dismiss the claims against the individual defendants.

The court dismissed the motion, finding that the claims against the individual defendants were factually intertwined with the claims against the corporate employer and were not readily separable.

The court concluded that granting partial summary judgment would create a material risk of inconsistent findings and would not be a proportionate or cost-effective way to resolve the litigation.

The plaintiffs in a proposed class action regarding a data breach brought motions to compel answers to questions refused on cross-examinations of two affiants and an omnibus motion to strike out various affidavits, factum paragraphs, and a sealing motion.

The court dismissed the refusals motions, finding the questions asked were beyond the narrow scope of the underlying motions (an injunction motion and a sealing motion) and were properly refused.

The court also dismissed the omnibus motion, finding no reason to strike the evidence or alter the timetable for the upcoming jurisdiction and certification motions.

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.