Jeffrey Elliot Feiner

The appellant appealed an Associate Justice's decision dismissing a motion for production of two documents (a Statement of Work and final report prepared by Ernst & Young) that were referenced in an affidavit filed by a non-party representative.

The underlying dispute concerned whether Ernst & Young's acquisition-related records should be produced in a broader non-party production motion.

The Associate Justice declined to compel production of the two documents, finding that doing so would be improper and would unduly interfere with the orderly progress of the action by creating a risk of inconsistent findings between the refusals motion and the main motion.

The appeal court upheld this decision, finding no palpable and overriding error in the Associate Justice's discretionary determination that the requests were improper, and that her consideration of fairness, proportionality, and the risk of inconsistent results was appropriate.

The Court of Appeal for Ontario considered whether its prior decision in Religious Hospitallers of St. Joseph Housing Corp. v. Regional Assessment Commissioner should be overruled.

That case had interpreted s. 3(1)12(iii) of the Assessment Act to require a charitable, non-profit philanthropic corporation seeking a municipal tax exemption to show it provided relief to the poor by "some form of endeavour." The appellant, Stamford Kiwanis Non-Profit Homes Inc., argued that this requirement was not supported by the statute or legislative intent.

The Court agreed, finding that Religious Hospitallers was wrongly decided, had not been followed in subsequent jurisprudence, and introduced a vague and unworkable "endeavour" requirement.

The Court overruled Religious Hospitallers, clarified the applicable test for exemption, and allowed the appeal, granting the appellant a property tax exemption for its affordable housing properties.

The applicant, Langs Community Development Corporation (LCDC), sought a declaration that its property was exempt from municipal property tax under s. 3(1)(12)iii of the Assessment Act, arguing it was a charitable, non-profit corporation organized for the relief of the poor and supported by public funds.

The respondents opposed, arguing LCDC did not meet the statutory requirements.

The court found that LCDC shared an identity in patrimony with Langs Farm Village Association (Langs), was supported in part by public funds (through a significant grant from the City of Cambridge), and was organized for the relief of the poor, both independently and by virtue of its shared identity with Langs.

The application for tax exemption was granted.

The plaintiff sought to enforce a 2008 Quebec default judgment against the defendants in Ontario.

The defendants raised a two-year limitation period defence under the Limitations Act, 2002.

The plaintiff argued that the action was not prescribed due to acknowledgment of debt, discoverability, or promissory estoppel.

The court found no valid written acknowledgment, rejected the discoverability argument as the plaintiff knew or ought to have known the defendants were domiciled in Ontario and had means to enforce the judgment, and dismissed the promissory estoppel claim due to a lack of evidence of an intention to affect legal relations regarding the limitation period.

The action was dismissed as prescribed, and costs were awarded to the defendants.

This is a costs endorsement following the successful dismissal of a Strategic Lawsuit Against Public Participation (SLAPP) action against media defendants (Corus and JNN defendants) under section 137.1(3) of the Courts of Justice Act.

The court determined that the successful defendants were entitled to full indemnity costs, as per the statutory presumption in section 137.1(7) of the CJA, finding no factors to displace this presumption.

The plaintiff failed to file responding costs submissions.

The court awarded the Corus defendants $92,820.00 in legal fees plus HST and disbursements, and the JNN defendants $66,402.00 in legal fees plus HST and disbursements, totaling $79,443.78.

The decision emphasizes the complexity and length of anti-SLAPP motions in justifying the quantum of costs.

The defendants brought a motion to strike the plaintiff's Fresh as Amended Statement of Claim for disclosing no reasonable cause of action.

The court found that the plaintiff had not remedied the deficiencies identified in a previous ruling by Diamond J., nor had the law changed to overcome these deficiencies.

The claims for intentional interference with economic relations failed because the third party (Contac) had released its claims against the defendants.

The conspiracy claim failed as it alleged a conspiracy between a corporate officer acting within his corporate capacity and the corporation itself, which is a legal impossibility.

The court also affirmed that a sole shareholder cannot sue for harm done to the corporation when the corporation itself has released its claims.

The motion to strike was granted without leave to amend, and partial indemnity costs were awarded to the defendants.

Tallman Truck Centre Limited appealed an order staying its action against K.S.P. Holdings Inc. The stay was imposed because Tallman failed to immediately disclose a settlement agreement with the co-defendant, Secure Capital Advisors Inc., which fundamentally altered Secure's adversarial position to a cooperative one with Tallman.

The Court of Appeal dismissed Tallman's appeal, affirming that such agreements, regardless of type (Mary Carter or Pierringer-type), require immediate disclosure as they change the litigation landscape.

The court reiterated that failure to immediately disclose constitutes an abuse of process, for which a stay of proceedings is the only appropriate remedy, regardless of intent or perceived prejudice.

CPI Security Services Inc. (CPI) brought a motion for costs after 2465855 Ontario Ltd. o/a The Westin Prince, Toronto (Westin) accepted CPI's Rule 49 offer to settle but then defaulted on payment and costs.

CPI sought $54,121.12 in costs.

The court fixed CPI's costs of the action on a partial indemnity basis and costs of enforcing the settlement on a substantial indemnity basis, totaling $47,037.30.

The court found Westin's general claims of COVID-19 financial impact insufficient to justify default and noted Westin's lack of communication.

The court also reduced CPI's claimed costs for undertakings and pre-trial preparation, deeming them excessive.

The defendant/plaintiff by counterclaim, Dr. Eric Owens, brought a motion seeking leave to amend his amended statement of defence and counterclaim to include claims for negligence, negligent misrepresentation, and increased damages of $8 million.

The plaintiff/defendant by counterclaim, Navigator Limited, opposed, arguing that the proposed amendments introduced new causes of action after the expiry of the applicable limitation period and that the increased damages claim was not tenable in law due to contractual limitation clauses.

The court granted Dr. Owens leave to amend, finding that the proposed claims arose from the same factual matrix as the original pleadings and were clarifications or alternative remedies, not new causes of action.

The court also determined that the applicability and effect of the contractual limitation of liability clauses should be assessed at a hearing on the merits, not at the pleadings stage.

K.S.P. Holdings Inc. (KSP) appealed a Master's decision that dismissed its motions to quash a summons to examine its counsel and to strike an expert affidavit.

KSP's underlying motion sought to stay the action due to Tallman Truck Centre Limited's (Tallman) alleged late disclosure of a litigation agreement with co-defendant Secure Capital Advisors Inc. The court found that the Master erred by allowing the examination of opposing counsel and admitting expert evidence on issues irrelevant to the abuse of process analysis, which, according to Handley Estate, focuses on immediate disclosure and does not require proof of prejudice.

The appeal was granted, quashing the summons and striking the affidavit.

KSP Holdings Inc. moved for disclosure of documents referenced in an affidavit by plaintiff's counsel, Marc Kestenberg, filed in response to KSP's motion for a stay.

KSP argued the documents were required under Rule 30.04(2), were relevant and not privileged, or that privilege had been waived.

The plaintiff claimed irrelevance and settlement privilege.

The court found the documents relevant to determining the true date of settlement between the plaintiff and a co-defendant, Secure Capital Advisors Inc., and that any settlement privilege was waived by extensive reference to the documents and negotiation details in the affidavit.

The court also held that Rule 30.04(2) mandates production of documents referred to in an affidavit, regardless of privilege.

The motion for disclosure was granted, and KSP was awarded costs.

The plaintiff moved under rule 37.14(1)(c) of the Rules of Civil Procedure to set aside a registrar’s order dismissing her wrongful dismissal action for delay under rule 48.14(5).

The court applied the contextual analysis derived from appellate jurisprudence and considered the four Reid factors: explanation for the delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendant.

While the plaintiff established inadvertence and moved promptly after learning of the dismissal, the court found the litigation delay inadequately explained and concluded that the plaintiff failed to rebut the presumption of prejudice arising from the expiry of the limitation period.

Balancing the competing principles of deciding cases on their merits and ensuring timely justice, the court declined to grant a further indulgence.

The motion to set aside the dismissal was therefore refused.