Iris Fischer

The plaintiff in a complex family trust dispute brought motions on the eve of trial for further documentary production, further examinations for discovery, and leave to amend her Statement of Claim.

The motions sought to introduce new allegations that the defendants covered up and settled claims of sexual misconduct against the family patriarch, Frank Stronach.

The court dismissed both motions, finding no evidence that the requested documents existed, that the new allegations were irrelevant to the pleaded claims of corporate mismanagement, and that amending the pleadings three weeks before a scheduled seven-week trial would cause non-compensable prejudice and delay.

Grand River Enterprises Six Nations Ltd. (GRE) appealed an order from the Superior Court of Justice requiring it, as a non-party, to produce financial documents for the valuation of shares held by a deceased in estates litigation.

The Court of Appeal dismissed the appeal, affirming the motions judge's discretionary decision.

The court found the documents relevant to the estate's valuation and the validity of the deceased's will, and that it would be unfair to proceed to trial without them.

The Court of Appeal upheld the motions judge's application of the Rule 30.10 test, emphasizing deference to the lower court's discretion and the effectiveness of the established Confidentiality Protocol in addressing GRE's concerns about privacy and business interests.

The court addressed two pretrial motions: one seeking to stay a counterclaim based on abuse of process due to delayed disclosure of a cooperation agreement, and another seeking leave for third-party discovery.

The motion to stay was dismissed, as the immediate disclosure rule for settlement agreements was found not to apply to agreements with non-parties.

The motion for third-party discovery was granted, with the court finding the non-party's evidence critical and that the cooperation agreement constituted a constructive refusal to provide information, making a pretrial examination necessary for trial fairness.

The plaintiffs sought to enforce an "Outline of Terms of Settlement" reached during mediation, arguing it constituted a binding agreement.

The defendants contended that the Outline was not intended to be enforceable and lacked essential terms.

The court found that the Outline did not objectively reflect a mutual intention to create a binding agreement and that numerous material issues, including debt reallocation, minority shareholder rights, and tax implications of asset transfers, remained unresolved.

The court dismissed the motion, emphasizing that it cannot create a contract for parties where essential terms are missing.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

The plaintiffs, Andrew and Selena Stronach, brought motions to strike out portions of the defendants' Fresh as Amended Statements of Defence under Rule 25.11 of the Rules of Civil Procedure.

The plaintiffs argued that the impugned pleadings improperly referenced documents and communications that were subject to settlement privilege arising from a confidential judicial mediation.

The defendants argued that the plaintiffs had waived privilege or that an exception applied based on the justice of the case.

The court found that the mediation was subject to settlement privilege, the plaintiffs had not waived the privilege, and no exception applied.

The court granted the motions to strike the pleadings relating to the mediation.

The court also struck out portions of one defendant's pleading as scandalous, but dismissed a motion to require another defendant to reinstate a withdrawn admission.

The plaintiffs, Andrew and Selena Stronach, sought leave to amend their respective statements of claim in two related actions concerning the management of the Stronach family business and trusts.

The defendants, including Belinda Stronach, opposed the amendments on several grounds, primarily arguing that references to a May 2020 Agreement were barred by settlement privilege.

The court found that the defendants failed to prove the May 2020 Agreement was intended to be kept confidential, and alternatively, that any privilege had been waived or an exception applied.

The court also rejected arguments that the amendments improperly withdrew admissions or were scandalous and vexatious.

Leave to amend the pleadings was granted.

The plaintiffs in a proposed class action alleging a price-fixing conspiracy regarding packaged bread sought court approval of a third-party litigation funding agreement with Bentham.

The defendants largely did not object, except regarding a clause allowing Bentham to satisfy any security for costs order via an undertaking rather than paying into court.

The court found the funding agreement necessary for access to justice, fair and reasonable to the class, and approved the agreement, including the provision allowing an undertaking for security for costs.

A reporter for the Toronto Star requested access to the names of the top 100 physician billers to the Ontario Health Insurance Program for fiscal years 2008 to 2012, along with their medical specialties and billing amounts.

The Information and Privacy Commissioner's adjudicator ordered disclosure, finding that physicians' names in this context were not personal information under the Freedom of Information and Protection of Privacy Act.

The Divisional Court upheld this decision.

The Ontario Medical Association and two groups of physicians appealed, arguing that physicians' names constitute personal information and are therefore exempt from disclosure.

The Court of Appeal dismissed the appeal, holding that the adjudicator's decision was reasonable and that the billing information, representing gross professional revenue before business expenses, did not reveal something of a personal nature about the physicians.

The applicant moved to strike portions of an affidavit filed by the respondent Attorney General.

The underlying application involves a Charter challenge to the application of FIPPA to certain quasi-judicial tribunals.

The parties had previously agreed to limit the scope of the application to 16 specific tribunals.

The impugned affidavit evidence detailed the procedures of the Social Benefits Tribunal, which was not one of the 16 listed tribunals.

The court granted the motion, finding that the evidence improperly expanded the scope of the application contrary to a prior case management endorsement.

Various public interest groups brought motions for leave to intervene as friends of the court in a Charter challenge regarding the application of the Freedom of Information and Protection of Privacy Act to administrative tribunals.

The court granted leave to intervene on consent to several groups.

For the contested proposed intervenors, the court granted leave to the Ontario Judicial Council and Justice for Children and Youth, finding they would bring unique perspectives and expertise.

The court denied leave to the Advocacy Centre for Tenants Ontario and the Workers' Health and Safety Legal Clinic, finding their proposed contributions would be largely repetitive of positions already represented by other parties and intervenors.

The plaintiff brought a motion to set aside a Registrar's order dismissing his defamation action for delay.

The action was administratively dismissed after the plaintiff failed to set it down for trial by January 1, 2017, although he successfully filed his trial record on January 27, 2017.

The court found that the Registrar should not have dismissed the action after accepting the trial record.

Applying the four-part test for setting aside a dismissal order, the court found the plaintiff provided an adequate explanation for the delay, his failure to meet the deadline was inadvertent, the motion was brought promptly, and the defendants suffered no actual prejudice.

The motion was granted, but the plaintiff was ordered to pay costs to the defendants for seeking the indulgence.

The appellant, a rapper performing under the name Avalanche the Architect, appealed the dismissal of his libel action against a newspaper and its reporter.

The action was struck as statute-barred under the Libel and Slander Act.

The core issue was whether the Act's notice and limitation periods apply to online newspaper articles.

The court held that the Act applies to online versions of newspapers, that the limitation period begins when the libel comes to the plaintiff's knowledge, and that the plaintiff's initial complaint did not constitute proper notice under the Act as it merely complained of factual errors without asserting libel.

The appeal was dismissed.

At a preliminary case management conference, the parties agreed to a timetable for the application.

The parties also agreed to limit the scope of the constitutional challenge regarding the Freedom of Information and Protection of Privacy Act to the 16 quasi-judicial tribunals specifically named in Schedule 'A' of the Notice of Application, rather than applying it broadly to all similarly situated tribunals.

The applicants, three police officers charged with sexual assault, sought to vary a sealing order to prohibit publication of information from an Information to Obtain (ITO) DNA warrants, arguing it was necessary to preserve trial fairness and prevent witness tainting and stigmatization.

The Crown supported the ban for consistency with a prior publication ban on conflict motion materials.

The media respondents opposed the ban.

The court dismissed the application, finding the applicants failed to provide sufficient evidence to meet the Dagenais/Mentuck test for a publication ban, which requires demonstrating a serious risk to the proper administration of justice that cannot be prevented by alternative measures, and that the salutary effects outweigh the deleterious effects on freedom of expression and public right to know.

The court emphasized the presumptive openness of warrant materials and the public interest in the investigation of police officers.

This was a costs endorsement following dismissal of a defendants' security for costs motion in a defamation action under s. 12 of the Libel and Slander Act.

The court held the successful plaintiff was entitled to costs, rejected substantial indemnity, and fixed costs on a partial indemnity basis after applying the Rule 57.01(1) factors, including the motion's significant complexity, the amount at stake, and the volume of the record.

Although the plaintiff had mortgaged her property to her lawyers, the court held that circumstance did not disentitle her to costs, but it justified deferring payment until after trial.

Costs were ordered in the amount of $50,000 inclusive of disbursements and HST, payable to the plaintiff in any event of the cause.

The defendants in a libel action brought a motion for security for costs under section 12 of the Libel and Slander Act after the trial judge passed away before rendering a decision.

The court held that the test under section 12 is conjunctive, requiring the defendants to prove that the plaintiff lacks sufficient assets, that the defendants have a good defence on the merits, and that the statements were made in good faith.

Although the plaintiff lacked sufficient assets, the defendants failed to establish that their defences of justification, fair comment, or responsible journalism were more likely than not to succeed, or that the statements were made in good faith.

The motion for security for costs was dismissed.

A media organization applied for access to and copies of exhibits filed at a criminal trial and sentencing hearing.

The accused did not oppose disclosure except for personal identifying information contained in a pre‑sentence report, a position supported by the Crown.

Applying the open court principle and the Dagenais/Mentuck framework, the court held that no evidence justified restricting access to the exhibits.

The court ordered disclosure of all exhibits but required that identifying information of third parties in the pre‑sentence report be redacted pending notice to those individuals and an opportunity for them to respond regarding potential disclosure.

In a defamation trial concerning an allegedly defamatory newspaper article also posted online, the plaintiff sought to introduce evidence of republication on third‑party websites based on Internet search results.

The court considered the rule that each republication of a libel is a separate publication and that the original publisher is not liable for subsequent republications unless an exception is pleaded, such as where repetition is the natural and probable consequence of the original publication.

The court reviewed authorities confirming that pleadings in defamation actions must specifically allege such exceptions.

Because the statement of claim did not plead the republication exception and no amendment had been sought despite notice from the defendants, the court held the plaintiff could not introduce evidence of republication by other Internet sites.

The evidentiary request was therefore refused.

The court dismissed both an application to set aside and an appeal from an accounting arbitration under an asset purchase agreement.

The moving party argued the arbitrator exceeded jurisdiction and made manifest errors by quantifying deferred-revenue adjustments without independent expert evidence.

The court held the arbitration agreement and engagement letter authorized determination and quantification of disputed deferred-revenue items, and that the award reflected a factually grounded analysis of known costs and contingency risk allocations.

The high threshold for court intervention was not met.