Jeffrey A. Kaufman

The Plaintiff sought to proceed with an unopposed summary judgment motion due to the Defendant's alleged failure to deliver a responding record by a court-ordered deadline.

The Defendant claimed non-receipt of the motion record and believed the motion was adjourned due to COVID-19 court notices.

The court found a miscommunication regarding document delivery but noted that the parties should have continued preparing the motion.

Balancing fairness to both parties, the court varied the existing timetable to allow the Defendant an opportunity to respond, prioritizing adjudication on the merits.

The Plaintiff's request for costs thrown away due to the delay was denied, acknowledging the Defendant's pandemic-related complications.

However, the Defendant was ordered to pay outstanding costs from a previous Master's Order.

The defendant brought a motion to transfer the action from the Superior Court in Oshawa (Central East Region) to the Superior Court of Justice in Toronto (Toronto Region), which the plaintiff opposed.

The court, applying Rule 13.1.02 of the Rules of Civil Procedure, found no rational connection to Oshawa.

Considering the location of the parties, counsel, events giving rise to the claim, and witnesses, the court determined that Toronto was a substantially better venue and that the interest of justice required the transfer due to inconvenience and additional costs if the action remained in Oshawa.

The motion to transfer was granted, and costs were reserved to the trial judge.

This decision addresses the costs of a dismissed interlocutory injunction motion brought by Phoenix Holdings Limited against Healthcare Holdings Inc. and KMH Cardiology Centres Incorporated.

The court found the injunction motion lacked merit and was brought with unacceptable late service of materials, causing the applicants unnecessary costs.

The court ordered Phoenix Holdings Limited to pay the applicants' costs on a partial indemnity basis, fixed at $20,000, inclusive of disbursements and HST.

The appellants appealed a trial judgment finding them unjustly enriched by the transfer of two valuable licenses without payment.

The appellants argued that where contract negotiations have failed, courts cannot use unjust enrichment to impose a contract on the parties.

The Court of Appeal rejected this submission, distinguishing the case from Skibinski v. Community Living British Columbia.

The trial judge had found as a fact that the appellants had no reasonable expectation of receiving the licenses for nothing.

The appellants also challenged the damages award, but the Court of Appeal found the trial judge's assessment entitled to deference.

The appeal was dismissed with costs awarded to the respondents.

The plaintiffs, Wilfred Davey and Bill Monture, sought partial indemnity costs after successfully amending their statement of claim in a putative class action.

The defendants challenged the quantum of costs.

The court, applying principles of costs assessment, fixed the plaintiffs' partial indemnity costs at $15,500, including disbursements.

The decision addressed and adjusted for HST, an estimated appearance fee, and a modest reduction for costs thrown away related to the defendants' original statement of defence, while deferring the issue of costs for the certification factum.

The plaintiffs, Wilfred Davey and Bill Monture, brought a motion for leave to amend their Statement of Claim in a putative class action alleging misuse of funds intended for development projects on Aboriginal land.

The proposed amendments included correcting party names, deleting breach of contract, adding oppression, and recasting/expanding other causes of action such as breach of fiduciary duty, breach of trust, and negligent/fraudulent misrepresentation.

The court granted leave to amend, finding that it was not plain and obvious that the proposed claims for breach of fiduciary duty, breach of trust, negligent/fraudulent misrepresentation, and oppression (under the OBCA) had no reasonable chance of success.

The court also clarified that the proposed class members, as beneficiaries of a trust, could qualify as beneficial owners of shares for the purpose of bringing an oppression claim, distinguishing it from a derivative action.

This is an appeal from a Master's order concerning two issues: security for costs and solicitor-client privilege over certain emails.

The security for costs issue was resolved by agreement during the appeal.

The primary issue remaining was whether emails sent by the plaintiff to his solicitor using a corporate email account were protected by solicitor-client privilege.

The court upheld the Master's decision, finding that the plaintiff had a reasonable expectation of privacy and that solicitor-client privilege, being a fundamental and substantive principle in Canadian law, was not waived despite the inadvertent disclosure of the emails.

The court distinguished solicitor-client privilege from general privacy expectations and rejected the application of American jurisprudence due to its narrower interpretation of privilege.

The parties brought competing motions seeking further documentary production in litigation concerning early termination of a commercial lease.

The landlord sought disclosure of the tenant’s corporate financial statements to assess claimed damages, while the tenant sought disclosure of the landlord’s rent rolls and leasing records to support its mitigation defence and counterclaim.

The court held that both categories of documents met the relevance test under the Rules of Civil Procedure notwithstanding commercial sensitivity.

Each party was ordered to produce the requested information, subject to the possibility of narrower agreement between counsel.

The court also directed the parties to update their discovery plan and consider involving accounting experts to streamline production and discovery.

An appeal from a master's order compelling a non-party witness to answer questions and produce documents on an examination under Rule 39.03 of the Rules of Civil Procedure.

The examination related to efforts to enforce a judgment against a dissolved corporation by seeking relief against an alleged corporate successor.

The appellant argued the trial judge was functus and that the questions were irrelevant because the court lacked jurisdiction to vary the judgment.

The court held that the requested questions were relevant to a pending motion seeking enforcement and potential relief under ss. 242 and 243 of the Ontario Business Corporations Act concerning property of dissolved corporations and shareholder liability.

The master's decision was entitled to deference and disclosed no error of law.

The appellants appealed a trial judgment finding them liable for negligent misrepresentation.

The trial judge found that the respondent, a potential investor, reasonably relied on assertions from the CEO of the appellant private company regarding its present value.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings on misrepresentation and reliance, and upholding the damages calculation as reasonable.

The Requesting Parties sought a hearing and review by the Ontario Securities Commission of the TSX's filing of amendments to the Universal Market Integrity Rules (UMIR) and the Director's acceptance of that filing.

Market Regulation Services Inc. (RS) brought a motion to quash the request, arguing it was moot, premature, and that the RS Hearing Panel had jurisdiction to decide the issues in the first instance.

The Commission held that there was no reviewable decision under sections 8 or 21.7 of the Securities Act, though it retained overriding supervisory jurisdiction under section 21(5).

The Commission declined to exercise its discretion to hear the matter, finding that the application was premature and would unduly fragment the ongoing RS disciplinary proceeding.

The Commission remitted the matter back to the RS Hearing Panel to determine the validity of the UMIR amendments.

The appellants appealed an order of the Divisional Court.

The Court of Appeal for Ontario dismissed the appeal as moot, with no order as to costs.

The appellant collection agency appealed a Deputy Judge's decision finding it liable in negligence and awarding $5,000 in damages for mental distress to the respondent debtor.

The Divisional Court upheld the finding that the appellant's harassing phone calls and improper contacts with the respondent's employer breached the standard of care, as evidenced by violations of regulations under the Collection Agencies Act.

However, the court allowed the appeal and set aside the damages award because the respondent failed to provide medical evidence of a recognized psychiatric illness, which is required to recover damages for mental distress in negligence.

The appellant law firm appealed to obtain a charging order over certain assets belonging to its former client, the respondent, for unpaid legal fees.

The Court of Appeal dismissed the appeal, finding that the law firm's services were not instrumental in obtaining the funds ultimately recovered.

Furthermore, there was no evidence that the respondent could not or would not pay the account, as she had undertaken to pay the assessment award within thirty days.

The appellant law firm appealed an order regarding the assessment of its legal accounts to its former client.

The Court of Appeal found that a combination of a letter and a voicemail message constituted a concluded agreement between the parties for the payment of the account.

As part of this agreement, the client waived her right to have the account assessed.

The appeal was allowed, the lower court order was set aside, and the client was ordered to pay the outstanding account of $32,384.87 plus costs.

The appellant appealed a trial judgment finding it had repudiated a contract for the manufacture of four moulds by failing to pay the contract price.

The trial judge awarded the respondent the unpaid price and damages for breach of contract.

On appeal, the Court of Appeal upheld the trial judge's factual findings regarding payment terms, delivery, and the respondent's right to withhold the moulds.

However, the Court allowed the appeal solely on the issue of a 5% discount included in the contract price, finding that the discount was not linked to payment and the appellant's breach did not negate it.

The appeal was otherwise dismissed, with costs awarded to the respondent.