Jerome R. Morse

The Court of Appeal for Ontario issued a costs endorsement following the hearing of two appeals.

The Van Breda respondents and the Charron respondents were each awarded costs fixed at $45,000, inclusive of disbursements and GST.

The respondents Hola Sun Holidays Limited and Bel Air Travel Group Ltd. were each awarded costs fixed at $10,000.

No costs were ordered for or against the interveners.

The appellants, out-of-province resort operators, appealed decisions dismissing their motions to stay or dismiss personal injury actions for want of jurisdiction.

The Court of Appeal convened a five-judge panel to reconsider the Muscutt test for assumed jurisdiction.

The Court modified the Muscutt test by elevating the weight given to Rule 17.02 of the Rules of Civil Procedure, creating a presumption of a real and substantial connection for most of its subrules.

The Court also collapsed the fairness factors and clarified the distinction between jurisdiction simpliciter and forum non conveniens.

Applying the revised test, the Court found a real and substantial connection between Ontario and the appellants in both cases and upheld the motion judges' decisions that Ontario was the appropriate forum.

The appellant employer appealed a jury verdict finding it liable for malicious prosecution and awarding over $2 million in damages to a former employee and his wife.

The employer had provided police with surveillance video allegedly showing the employee stealing money, but deliberately withheld exculpatory portions of the video that corroborated the employee's innocent explanation.

The employee was convicted, fired, and lost his grievance arbitration before the exculpatory evidence was discovered, leading to his convictions being quashed.

The Court of Appeal dismissed the employer's arguments that the claim fell within the exclusive jurisdiction of a labour arbitrator and that it had not 'initiated' the prosecution.

The Court upheld the jury's significant awards for general, aggravated, and punitive damages, finding them justified by the employer's callous and malicious conduct over a 13-year period.

A cross-appeal regarding costs was also dismissed.

The appellant town appealed a motion judge's decision that claims made against it in a construction dispute were excluded from its insurance coverage.

The underlying action alleged misrepresentations in a tender bid, breach of contract, and breach of a duty of good faith.

The Court of Appeal applied the three-step process from Scalera to determine the true nature of the claims.

The court found that the essential character of the claims related to the tender process and contractual performance, which were unambiguously excluded under the policy.

The appeal was dismissed.

The appellants appealed a decision interpreting an accepted settlement offer under Rule 49.10.

The motion judge held that an offer to pay $6,000,000 in damages did not preclude a structured settlement, provided the appellants' obligations ended with the payment of the principal amount plus costs.

The Court of Appeal agreed, noting that the motion judge ensured no added financial or legal obligations were placed on the appellants.

The appeal was dismissed.

The appellants appealed a trial judgment awarding costs in the form of damages and substantial indemnity costs against Westmont.

The Court of Appeal set aside the award of costs as damages due to lack of specificity in the pleadings.

The Court upheld the substantial indemnity costs for the main claim under Rule 49.10, but found that Rule 49 should not apply to the counterclaim against Westmont, as it was not a party to the counterclaim.

The costs award was apportioned and reduced to $190,000.

The appellant physician appealed a decision of the Discipline Committee revoking his certificate of registration for sexual and professional misconduct involving a 15-year-old vulnerable patient.

The appellant argued the penalty was unduly harsh and that the committee failed to properly weigh expert and character evidence regarding his mental disorder.

The Divisional Court applied the reasonableness standard of review and found the committee's findings and the penalty of revocation were reasonably supported by the evidence, given the overwhelming aggravating factors.

The appeal was dismissed.

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, which found him guilty of professional misconduct and revoked his certificate of registration.

The charges related to his conduct during a patient's unsuccessful resuscitation, his use of heavy sedation for nerve blocks, and his prescription of high-dose opioids for chronic pain patients.

The Divisional Court upheld the Committee's findings regarding the resuscitation and the use of sedation, finding them reasonable based on the evidence.

However, the Court set aside the findings related to opioid prescriptions and a toxic dose of Marcaine, concluding the Committee ignored crucial defence expert testimony and relied on a charting error.

The penalty of revocation was set aside as excessive and the matter was remitted to a differently constituted Committee.

The applicant physician sought judicial review to quash an interim order by the College of Physicians and Surgeons of Ontario that restricted his medical practice.

The applicant argued the College failed to prosecute the discipline matter expeditiously as required by section 37 of the Health Professions Procedural Code.

The Divisional Court dismissed the application, finding that the scheduled hearing dates complied with the statutory requirement to expedite the matter, though the court noted the desirability of continuous hearings.

The plaintiff entered into an agreement with the defendant to organize a consumer club.

The defendant delivered a notice terminating the agreement, which the plaintiff argued was ineffective based on the renewal terms.

The plaintiff sued for breach of contract and the defendant successfully moved for partial summary judgment.

On appeal, the Court of Appeal found the termination provision ambiguous and held that extrinsic evidence of surrounding circumstances is always admissible to interpret a contract.

The court concluded there was a genuine issue for trial and allowed the appeal.