Janet Leiper

The applicants sought to remit an arbitration matter back to the arbitrator under section 46(8) of the Arbitration Act, 1991, arguing that the arbitrator failed to address certain issues and that the purported transfer of shares in Power Investment Properties Inc. should be declared invalid.

The respondents sought enforcement of the arbitral awards.

The court dismissed the applicants' application as time-barred under section 47 of the Arbitration Act, finding that the 30-day deadline for bringing a section 46 application applies to all applications under section 46, including those seeking remittance under section 46(8).

The court granted the respondents' application to enforce the arbitral awards.

Panasonic Canada Inc. brought an application for a declaration that its insurance claim with XL Specialty Insurance Company was subject to a $1.5 million USD retention and sought coverage for replacement laptops purchased as reasonable mitigation following a cyber-attack.

XL contended that a $3 million USD retention applied because the claim involved a "ransomware event" under Endorsement 23 of the policy.

The court found that Panasonic's claim attracted the lower $1.5 million USD retention, that the laptop purchases were reasonable and necessary mitigation expenses, and that the property damage exclusion did not apply.

The court granted Panasonic's application, save for six laptops that were not shown to be necessary.

The applicant, Parvez Peerpasha Huseni Inamdar, sought to rescind an Agreement of Purchase and Sale for a vacant property after discovering a restrictive covenant limiting development to a single detached house.

The court found that the covenant was a registered restrictive covenant excepted by the agreement, and that the applicant, a sophisticated purchaser, had removed due diligence conditions and assumed the risk.

The application for rescission was dismissed.

On a certification motion in a proposed national product liability class action concerning talc-based baby powder and epithelial ovarian cancer, the court held that the plaintiffs met four of the five certification criteria for negligence, Competition Act claims, and consumer protection claims in several provinces.

The court struck or refused Ontario and Prince Edward Island consumer protection claims for lack of privity of contract, and indicated that Yukon and New Brunswick statutory claims required further submissions.

The court accepted that the plaintiffs' expert evidence provided a plausible methodology for proving general causation, negligent design and manufacturing, misleading representations, and punitive damages as common issues, while emphasizing that conflicting expert opinions were for trial.

The motion to stay for delay was dismissed because the delay was sufficiently explained and prejudice was not irreparable.

However, the duplication-based stay motion and the preferability analysis were adjourned pending the outcome of the British Columbia appeal.

The court considered whether the buyers were entitled to repudiate a real estate purchase agreement due to a storm sewer easement registered on title, and the resulting damages.

The court found the buyers were not entitled to repudiate, as the easement did not materially affect the use of the property, and awarded damages to the sellers, including the forfeited deposit and consequential losses.

The plaintiff's motion to oppose confirmation of an Associate Justice's interim report in a construction lien matter was dismissed.

The successful defendants sought costs on a substantial indemnity basis due to an unaccepted offer to settle.

The court considered the defendants' success, the offer to settle, the importance of the issue, and the scale of the underlying litigation, fixing costs at $65,000 all inclusive.

The plaintiffs, a former university professor and his spouse, sued the CBC for defamation and negligence seeking $10.35 million in damages over news reports regarding the professor's termination following an investigation into sexual harassment allegations.

The CBC brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the action.

The court granted the motion, finding that the reporting concerned a matter of public interest, the CBC had valid defences of responsible communication, justification, and fair comment, and the public interest in protecting the expression outweighed the harm to the plaintiffs.

The action was dismissed with full indemnity costs awarded to the CBC.

The court dismissed Bellsam Contracting Ltd.'s motion to oppose confirmation of Associate Justice Robinson’s interim report in a construction lien dispute.

The decision confirms that the December 17, 2018 budget document was the governing contract, not a later, higher-priced quote.

The court found no error in the Associate Justice’s findings of fact or law, and emphasized the deference owed to such findings on review.

Bellsam’s new legal argument regarding conditional acceptance was rejected as it was not raised at trial and lacked evidentiary support.

The court sentenced the offender for historical sexual offences committed against his stepdaughter over about three and a half years, beginning when she was 13.

The judge found numerous aggravating factors, including the prolonged abuse, the parental trust relationship, manipulation to keep the offences secret, and the profound long-term harm to the complainant.

Relying on sentencing principles for sexual offences against children and comparable cases, the court held that denunciation and deterrence had to be emphasized.

The offender received a global penitentiary sentence of eight years, with concurrent two-year sentences on the other counts and several ancillary orders.

The plaintiff, Justin Ngan, brought a motion to partially discontinue his claim, amend his pleadings, and certify the action as a class proceeding regarding the calculation of holiday and vacation pay by The Bank of Nova Scotia.

The defendant consented to the motion.

The court granted the orders, finding the amendments and discontinuance reasonable and the class action appropriate for certification.

The class includes employees who received incentive or variable compensation, and the common issues focus on whether such compensation should be included in statutory pay calculations under the Canada Labour Code.

This decision resolves a carriage motion between three proposed class actions seeking damages for investors in The Toronto-Dominion Bank, arising from alleged misrepresentations and failures to disclose anti-money laundering (AML) deficiencies.

The court concludes that the Parkin action is best suited to advance the class members’ claims efficiently and cost-effectively, considering the statutory criteria under the Class Proceedings Act, 1992.

The decision addresses the impact of late registration of a class proceeding, the legal framework for carriage motions, the comparative strengths and weaknesses of each action, and issues of funding and counsel experience.

On a motion under the Class Proceedings Act, 1992, the court approved the settlement of a class action alleging that a mutual fund manager and trustee improperly paid trailing commissions to discount brokers, thereby diminishing fund assets.

The court held the $8.5 million non-reversionary settlement was fair, reasonable, and in the best interests of the class, emphasizing the arms’-length negotiations, substantial litigation risks, limitation defences, expert-supported valuation, and efficient distribution method combining direct deposits for current unitholders with a simplified claims process for former unitholders.

The court also approved class counsel fees, taxes, disbursements, litigation funding payments, and a modest honorarium for the representative plaintiff.

The certification question itself was not decided on this motion.

The Crown applied to summarily dismiss the defendant's post-conviction Charter application for a stay of proceedings.

The defendant argued that his right to make full answer and defence was breached because the police and child welfare services failed to audio or video record interviews with the complainant in 2004, and certain school records had been routinely destroyed.

The court found that there is no constitutional or common law right requiring the police to record investigative interviews, and the routine destruction of school records did not constitute unacceptable negligence.

Consequently, the court held that the Charter application was manifestly frivolous and granted the Crown's application for summary dismissal.

A tenant in common sought partition of a long-held family cottage property on an island, relying on decades of separate use of a second cottage she had built and maintained.

The respondent opposed partition based on a family agreement restricting dealings with the property, alleged oppression, and the subdivision-control provisions of the Planning Act.

The court held that the agreement remained a relevant factor but did not clearly contract out of the Partition Act, that no malice, vexatiousness, oppression, or unclean hands were established, and that the Planning Act did not bar a partition order although municipal consent would be required for legal effect.

The application was granted subject to municipal approval.

The plaintiff, Hayley Szeto, brought a medical negligence claim against her gynecologist surgeon, Dr. Sari Kives, after suffering a bowel perforation during a reproductive organ surgery.

The plaintiff alleged the defendant fell below the standard of care by failing to detect and repair the perforation.

The court found that the bowel injury occurred during the surgery and was significant (1-2 cm), and that the defendant failed to adequately inspect the bowel, especially given additional risk factors like significant adhesions, uterine fundus perforation, obesity, and epiploica.

The court concluded that the defendant's failure to meet the standard of care caused the plaintiff's damages, leading to emergency surgery and severe complications.

Following the dismissal of the applicant's application for judicial review, the court determined the issue of costs.

The court rejected the applicant's argument that he was a public interest litigant and applied the presumption that a successful party is entitled to costs.

Costs were fixed in favour of the respondent on a partial indemnity basis in the amount of $15,000 all-inclusive.

The applicant sought judicial review of two decisions by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) denying benefits for neck and left wrist injuries and reducing benefits for non-cooperation with a work transition plan.

The applicant argued the Tribunal was biased and ignored his evidence.

The Divisional Court dismissed the application, finding that the Tribunal's factual findings were supported by the evidence and its decisions were reasonable.

The court noted that disagreement with the Tribunal's findings does not establish bias or unreasonableness.

The appellant appealed and sought judicial review of a Landlord and Tenant Board decision finding that the Residential Tenancies Act applied to her relationship with the respondent.

The appellant claimed she lived in the unit and shared a kitchen, which would exempt her under s. 5(i) of the Act.

The Board accepted the respondent's evidence that the appellant did not live on the premises.

The Divisional Court dismissed the appeal and judicial review, finding no error in the Board's assessment of the evidence or its refusal to admit fresh evidence under the Palmer test.

The estate trustees appealed a decision finding the deceased's grandson to be a dependant and ordering the transfer of the deceased's home to him as support.

The Divisional Court upheld the finding of dependency, noting the deceased provided shelter, moral guidance, and some financial support to the vulnerable grandson.

However, the court allowed the appeal on the issue of remedy, finding the application judge failed to consider the deceased's testamentary intentions regarding the family home.

Instead of transferring the property, the court ordered a monetary award of $152,000 to be paid from the estate.

The appellants appealed a decision under the Business Corporations Act regarding a deadlocked dental corporation.

The application judge had found no oppression by the respondent and ordered the corporation to be wound up essentially in terms of the buyout provisions of a draft shareholders' agreement.

On appeal, the appellants argued the judge misapprehended evidence and failed to address the relief sought regarding the sale of shares.

The Divisional Court dismissed the appeal, finding the application judge's rulings were based on the evidence and constituted a reasonable exercise of discretion.

A motion to introduce fresh evidence was also dismissed.