Jeffrey Elliot Feiner

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.

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, which imposed a 12-month suspension and a general prohibition on prescribing and administering controlled substances.

The appellant argued the Committee erred by departing from a joint submission that would have allowed him to continue prescribing in an in-hospital setting, and by imposing a 12-month rather than 6-month suspension.

The Divisional Court dismissed the appeal, finding the Committee provided adequate notice of its concerns, met the high threshold for departing from a joint submission, and imposed a fit and proportionate penalty given the appellant's severe clinical deficiencies.

A motion to adduce fresh evidence was also dismissed.

The Township of Warwick appealed the property assessment of an active private landfill owned by Waste Management of Canada Corporation.

The central issue was whether the valuation of the landfill under section 43.2 of O. Reg. 282/98 should include the market value of its remaining landfilling capacity.

The Assessment Review Board held that section 43.2 requires the exclusion of value attributed to the remaining landfilling capacity, as the regulation mandates valuing the land as if it were vacant industrial land.

The Board set the current value of the property at $6,387,000 for the 2019, 2020, and 2021 taxation years and found no equity adjustment was required.

The Township of Warwick appealed the MPAC assessment of an active private landfill owned by Waste Management of Canada Corporation for the 2019, 2020, and 2021 taxation years.

The central issue was whether section 43.2 of O. Reg. 282/98 requires the valuation of the landfill as 'vacant industrial land' to include the market value of its remaining landfilling capacity.

The Assessment Review Board held that section 43.2 establishes a special valuation regime that ousts the general market value approach under section 19(1) of the Assessment Act.

Consequently, the value of the remaining landfilling capacity must be excluded.

The Board determined the correct current value of the property to be $6,387,000 and found no basis for an equity adjustment.

The requesting party sought an order for the Municipal Property Assessment Corporation (MPAC) to disclose documents relating to properties not under appeal.

Notice was served on the owners of the other properties, and no objections were received.

As the request was on consent of all parties, the Assessment Review Board granted the order for disclosure subject to terms imposed by MPAC under s. 53(5) of the Assessment Act.

The appellant physician appealed a decision of the Discipline Committee revoking his certificate of registration for professional misconduct.

The misconduct included a guilty plea related to OHIP billing, clinical and record-keeping deficiencies, and misleading the College regarding a vaccine administration.

The Divisional Court dismissed the appeal, finding no error in principle in the Committee's conclusion that the appellant was irremediable given his extensive 18-year disciplinary history.

The court held that the penalty of revocation was proportionate and not clearly unfit.

The applicant brought a motion for leave to appeal the decision of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

A case management teleconference was held to schedule a motion for leave to appeal a decision of the Assessment Review Board.

The court set a timetable for the service and filing of materials, directed that the hearing proceed by Zoom videoconference, and provided instructions for the electronic filing of documents.

A case management teleconference was held to provide directions for a motion for leave to appeal from a decision of Faieta J. The court ordered the motion to proceed in writing before a panel of three judges of the Divisional Court and provided detailed instructions for the electronic filing of materials, including the use of a drop box, hyperlinked factums, and factum compendiums.

The appellant appealed the property tax assessment of a landfilling site, arguing that a landfill gas to energy facility should be excluded from the land's valuation.

The Assessment Review Board found that the facility, which generates electricity from methane gas, is an environmental control activity used exclusively for landfilling activities.

The Board also determined the facility qualifies as a 'gas collection system' under O. Reg. 282/98.

Consequently, the facility was excluded from the valuation, and the property's current value was set at $1,105,000.

The City of Vaughan brought a motion for disclosure of documents from Promenade General Partner Inc. in a property assessment appeal.

The requested documents included full commercial leases, agreements of purchase and sale, and an appraisal report.

Promenade opposed the motion, arguing that the documents contained irrelevant information, that production was disproportionate, and that confidentiality could not be ensured.

The Assessment Review Board granted the motion, finding that the requested documents were relevant to the issues in dispute and that their disclosure was proportionate and necessary for the parties to prepare their cases.

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.

The applicant sought leave to appeal a decision of the Assessment Review Board regarding the valuation of his property.

Appeals from the Board are limited to questions of law.

The applicant argued the Board erred in its use of comparable properties, application of the burden of proof, and consideration of equity.

The Divisional Court dismissed the motion, finding that the applicant's arguments raised questions of fact or mixed law and fact, not extricable questions of law, and failed to raise any important legal question meriting appellate review.

The defendants brought a motion to strike the plaintiff's claims for conspiracy to injure and intentional interference with economic relations.

The plaintiff, former CEO of a company in receivership, alleged the defendants conspired to breach contracts to harm him personally.

The court struck the conspiracy claim because it failed to explain how the corporate defendant would agree to act against its own interests.

The court also struck the intentional interference claim because a prior release agreement meant the third-party company had no actionable civil wrong against the defendants.

Both claims were struck with leave to amend.

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 applicant property owner sought a declaration that a 'right of first refusal to purchase' granted to the respondent upon the sale of the property was void due to frustration.

The applicant argued that the withdrawal of an adjacent landowner from a planned land assembly rendered the development project impossible.

The court determined that the right was an option to purchase creating an interest in land, not a mere right of first refusal.

The court dismissed the application, finding that the withdrawal of the adjacent landowner was a foreseen event provided for in the parties' agreements and did not render the provision of the commercial space impossible.

The court also held that the right did not violate the rule against perpetuities.

The applicant filed a human rights application alleging sexual harassment and assault by an employee of the organizational respondents.

She subsequently brought a request to add the alleged perpetrator as a personal respondent.

The organizational respondents opposed the request, citing delay and denying vicarious liability.

The Tribunal applied the Smyth and Persaud factors and granted the request, finding that the proposed respondent's conduct was central to the allegations and that adding him was necessary to ensure the Tribunal's jurisdiction to award a remedy, particularly since the organizational respondents did not accept vicarious liability.

An employee of the respondent perpetrated a large-scale fraud by requisitioning cheques payable to six entities and depositing them into accounts he controlled.

Two of the entities were invented, and four were customers not owed money.

The respondent sued the appellant banks for conversion.

The Court of Appeal allowed the banks' appeal, finding they had a valid defence under s. 20(5) of the Bills of Exchange Act.

The court held that the two invented payees were non-existing, and all six payees were fictitious because the respondent's directing minds never formed an intention to pay them.

A pharmaceutical company brought summary judgment motions against banks for conversion after an employee fraudulently issued corporate cheques payable to entities with names similar to legitimate customers and deposited them into accounts he controlled.

The banks asserted statutory defences under the Bills of Exchange Act, including the fictitious payee rule and the holder in due course provision, and advanced negligence-based counterclaims and equitable set-off.

The court held the payees were plausibly identifiable real entities and therefore not fictitious or non‑existent for the purposes of s. 20(5) of the Act.

It further found that s. 165(3) did not apply because the cheques were not delivered to authorized persons entitled to them.

The negligence-based counterclaims and related defences were barred by the strict liability regime governing cheque conversion.

The plaintiffs brought a medical malpractice action against the defendant cardiologist following the sudden death of a 36-year-old man who collapsed after completing a half-marathon.

The deceased had severe aortic stenosis.

The plaintiffs alleged the defendant failed to properly advise the deceased against strenuous exercise.

The court ruled that hearsay statements by the deceased regarding the doctor's advice were inadmissible for lack of threshold reliability.

The court accepted the defendant's evidence that he had advised the deceased against distance running and warned him of the risk of sudden death.

The court found the defendant met the standard of care and dismissed the action.