James F. Diamond

The appellant sought to appeal an order of the Superior Court of Justice that required evidence to be led regarding a limitations defence at trial.

The Court of Appeal quashed the appeal for lack of jurisdiction, finding that the matter was clearly interlocutory.

The appellant appealed a trial judgment that granted the respondent $27,641.57 and dismissed the appellant's claim for constructive dismissal.

The Divisional Court found no error in the trial judge's placement of the onus on the appellant to prove constructive dismissal after the respondent proved he had resigned.

The court also found no palpable or overriding error in the trial judge's factual findings, including her rejection of the appellant's claim that he resigned due to unaddressed safety concerns.

The appeal was dismissed with costs.

The appellant challenged the constitutionality of the Ontario Civil Remedies Act, 2001, arguing that its civil forfeiture provisions were ultra vires the province because they encroached on the federal criminal law power.

The Supreme Court of Canada held that the legislation is valid under the province's power over property and civil rights.

The Court found that the dominant purpose of the Act is to compensate victims and suppress conditions leading to crime by removing financial incentives, rather than to punish criminal offenders.

Furthermore, the Court concluded there was no operational conflict between the provincial forfeiture scheme and the sentencing provisions of the Criminal Code.

The appellant bank appealed a summary judgment requiring it to honour three certified cheques.

The cheques were purchased using funds derived from a fraudulent mortgage scheme.

The motion judge had found no evidence that the respondent payee participated in the fraud and held that the bank was obliged to pay.

The Court of Appeal allowed the appeal, finding that the motion judge misapplied the burden of proof under the Bills of Exchange Act.

Because the bills were affected by fraud, the burden shifted to the respondent to prove he was a holder in due course.

Given the suspicious circumstances and credibility issues, there were genuine issues for trial.

The appellant appealed a trial judgment regarding the conversion of its customer relationships and equipment by the respondents.

The Court of Appeal found that the trial judge erred in determining the extent of the respondents' entitlement to compete based on a rescinded franchise agreement, and in finding that the appellant failed to mitigate its damages.

The Court allowed the appeal, set aside the trial judgment, and awarded the appellant $40,000 in damages for the conversion of its business relationships, plus costs.

The Attorney General of Ontario brought an application for civil forfeiture of cash and marijuana grow equipment seized from the appellant's vehicle under the Civil Remedies Act.

The appellant challenged the constitutionality of the Act, arguing it was ultra vires the province and violated the Charter.

The Court of Appeal upheld the application judge's decision, finding the Act's pith and substance relates to property and civil rights, not criminal law.

The court also held that section 11 of the Charter does not apply to civil forfeiture proceedings as they do not result in true penal consequences.

The appeal was dismissed.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondents were awarded costs of the appeal, fixed at $6,500 inclusive of disbursements and GST.

The appellant, Gold Financial Corp., appealed two orders of the Superior Court of Justice and sought an order that one-half of the proceeds of the sale of the Puslinch land be paid into court.

The motion judge had concluded that neither the Notice nor the Share Pledge Agreement was entitled to any weight and that the appellant's General Security Agreement did not support any claim to an interest in the land.

The Court of Appeal found no error in the motion judge's conclusions and dismissed the appeal with costs on a partial indemnity basis.

The respondent, a former director of a corporation, sought a declaration that his insurer owed a duty to defend him against a counterclaim brought by the corporation.

The insurer denied coverage based on an 'insured v. insured' exclusion clause in the Directors' and Officers' Liability Policy.

The application judge found a duty to defend, relying on American authorities that considered the purpose of the exclusion clause.

The Court of Appeal allowed the insurer's appeal, holding that the exclusion clause was unambiguous and clearly excluded coverage for claims brought by the corporation against its directors.

As the claim fell outside coverage, there was no duty to defend.

The appellant franchisor failed to provide the required disclosure document to the respondent franchisee under the Arthur Wishart Act.

Days before the two-year limitation period expired, the franchisee rescinded the agreement and immediately set up a competing business servicing the same customers.

The application judge upheld the rescission and dismissed the franchisor's counter-application for an accounting and injunctive relief.

On appeal, the Court of Appeal held that while the franchisee has an absolute right to rescission under s. 6(2), the franchisor retains the right under s. 9 to pursue an action for the franchisee's post-rescission conduct.

The Court set aside the dismissal of the franchisor's application and converted it into an action due to material facts in dispute.

The appellants, an investment firm and its employee, appealed a trial judgment finding them liable for breach of fiduciary duty and awarding $288,846 in damages to an elderly client.

The employee had executed 68 unauthorized trades in the client's non-discretionary account, contrary to her investment objectives and professional rules.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the employee's assumption of total control over the account created a fiduciary relationship, that the client did not ratify the trades due to the employee's reassurances, and that restitutionary damages were appropriate.

The appellant appealed a Master's decision refusing to stay an order for partial summary judgment requiring her to pay $126,500 owing on two promissory notes.

The Master had exercised his discretion under Rule 20.08, considering the equities and the weakness of the appellant's draft counterclaim.

The Divisional Court dismissed the appeal, finding that the Master applied the correct legal principles and was not clearly wrong in his exercise of discretion.

The appellants appealed an order dismissing their proposed counterclaim for abuse of process.

The appellants alleged that the respondents' letter of complaint to the I.D.A. was sent for the improper purpose of extorting a settlement in a civil claim.

The Court of Appeal dismissed the appeal, finding that the proposed counterclaim failed to plead facts of a definite act or threat in furtherance of the illegitimate purpose, which is a required element of the tort of abuse of process.

The appellants, having successfully appealed a trial decision regarding the enforcement of a Florida judgment, moved for the payment out of court of moneys they had posted as security for costs.

The respondents, who had been granted leave to appeal to the Supreme Court of Canada, moved for a stay of execution of the Court of Appeal's judgment.

The Court of Appeal dismissed the appellants' motion, finding it just to maintain the status quo and keep the security in court pending the Supreme Court appeal due to the appellants' non-resident status and potential hardship.

The Court granted the respondents' motion for a stay of execution, accepting an irrevocable $1 million guarantee from the Lawyers Professional Indemnity Company as satisfactory security.