J. Gardner Hodder

Physicians sought to withdraw life support from an incapable patient while the substitute decision-maker refused consent.

The Court held, by majority, that withdrawal of life support in the circumstances constituted treatment under Ontario’s Health Care Consent Act, 1996 and therefore required consent under the statutory regime.

The majority concluded that disputes over refusal of consent must be addressed before the Consent and Capacity Board, which may substitute its decision if statutory best-interests criteria are not met.

Dissenting reasons would have resolved the dispute under the common law rather than the statutory board process.

The appeal was dismissed, with dissent.

The moving law firm sought approval of a contingency fee agreement and settlement involving a catastrophically injured plaintiff represented by a litigation guardian.

The court was required to determine the reasonableness of the contingency fee agreement under s. 24 of the Solicitors Act following direction from the Court of Appeal that fairness and reasonableness be assessed separately.

Considering the complexity of the liability issues, the catastrophic damages, the litigation risk including potential contributory negligence, and the substantial work performed, the court held the 25% contingency fee reasonable.

The court emphasized that the assessment of contingency fees focuses on recovery achieved rather than docketed time alone.

The contingency fee agreement and proposed legal fees were approved.

A software developer and his corporation brought a counterclaim against a securities trading firm alleging wrongful dismissal and breach of contract following termination of his role as chief technology officer.

The court first determined that despite a services agreement structured through a corporation, the relationship functioned as employment, applying the multi‑factor test from Sagaz Industries.

The court held that a prior service agreement had been fully released by mutual release and could not ground claims.

It also rejected the claimant’s assertion that he was entitled to commissions based on algorithmic trading profits, finding the agreement applied to traders and not to a software developer who neither created strategies nor executed trades.

The court further found just cause for termination where the employee inserted malicious code into the firm’s trading platform, removed source code access, attempted to market competing software, and breached confidentiality obligations.

The counterclaim for wrongful dismissal and breach of contract was dismissed.

The appellant appealed a summary judgment decision regarding the deduction of a hypothetical tax on deferred compensation received after his retirement.

The Court of Appeal agreed with the motion judge that the hypothetical tax applied to income earned during employment and received in retirement.

The appeal was dismissed with agreed costs awarded to the respondent.

The self‑represented plaintiff in a legal malpractice action brought a motion under Rule 26.01 of the Rules of Civil Procedure seeking leave to amend her amended statement of claim.

The proposed amended pleading was 236 pages long and contained extensive allegations including claims involving non‑parties, pleas of evidence rather than material facts, scandalous allegations, constitutionally flawed assertions, and claims that were statute‑barred or otherwise untenable.

The court held that leave to amend should be refused where proposed amendments are clearly impossible of success or constitute an abuse of process.

The court concluded that the proposed pleading was fundamentally flawed and non‑compliant with pleading rules requiring concise statements of material facts.

The motion for leave to amend was dismissed with prejudice in respect of the untenable allegations.

The plaintiffs in a proposed class action for wrongful dismissal brought a motion seeking particulars of the allegations in the defendants' Statement of Defence and Crossclaim.

The plaintiffs argued the particulars were necessary to deliver a reply and to prepare for the upcoming certification motion.

The court dismissed the motion, finding that the plaintiffs did not need the particulars to plead a reply, as they were not proposing a different version of facts.

Furthermore, the court held that particulars should not be used as a substitute for discovery, and the plaintiffs would have ample opportunity to understand the defendants' case through the normal certification motion procedures.

The respondent law firm sued the appellant for unpaid legal bills arising from divorce proceedings.

The appellant counterclaimed for an order that the bills be referred for assessment, alleging his lawyer failed to address a material change in circumstance and a mathematical error in an arbitration award.

The motion judge granted summary judgment for the law firm, finding the request for assessment disingenuous because the appellant had promised to pay.

The Court of Appeal allowed the appeal, holding that the request was not tactical as the factual basis was known to the solicitor during the relationship, and referred the accounts for assessment.

The applicant sought summary judgment requiring his former employer to return amounts withheld as hypothetical tax from post‑retirement deferred compensation payments.

The dispute concerned whether stock‑based deferred compensation received after retirement retained its character as employment income and therefore remained subject to the employer’s contractual tax equalization policy for expatriate executives.

The court held that, under the employment contract and the Income Tax Act, deferred compensation arising from employment remains employment income regardless of when it is received.

Because the applicant had agreed that employment income, including stock‑based compensation, would be subject to hypothetical tax, the employer was entitled to continue applying the policy after retirement.

The motion and underlying claim were dismissed.

In post-settlement proceedings involving funds structured through a Special Needs Trust and annuity, the court addressed correspondence from counsel requesting review and variation of a proposed amended judgment relating to trusteeship and annuity payments.

The judge noted prior allegations of judicial bias and confirmed that he had already recused himself from the matter.

Given the recusal and the lack of written consent and clear directions from the parties and the Public Guardian and Trustee, the judge declined to take further steps.

The court indicated that another judge should assume carriage of the matter and determine outstanding issues including solicitor fees, distribution of settlement funds, trust modifications, and appointment of a suitable trustee.

Pending those determinations, the court suggested that funds incapable of being delivered to an approved trustee should be paid into court.

In a personal injury settlement involving a catastrophically injured plaintiff under disability, the court addressed issues arising from a contingency fee agreement between the plaintiff’s solicitors and the litigation guardian.

Following a prior appeal that determined fairness at the time the agreement was made but remitted the issue of reasonableness for determination, the motions judge issued directions requiring independent counsel for the incapable plaintiff and the canvassing of potential conflicts involving the Public Guardian and Trustee.

Counsel for the solicitors alleged judicial bias and sought the judge’s recusal.

The court rejected the allegation of bias, explaining that its interventions were aimed at ensuring proper representation and protection of the interests of the disabled plaintiff under Rule 7 and the court’s parens patriae jurisdiction.

Nevertheless, the judge concluded that recusal was appropriate to avoid protracted litigation and to allow the issues to be determined by another motions judge.

Following the release of the court's reasons, the parties made further written submissions on the issue of costs in the proceedings below.

The court awarded the appellant $7,500 for the appeal and $4,250 for the Divisional Court, reflecting her success on one of the two issues dealt with by that court.

No costs were awarded for the initial motion due to mixed success.

Total costs of $11,750 were awarded to the appellant.

The appellant law firm appealed an order fixing its fees for representing a person under a disability in a personal injury action.

The law firm had entered into a contingency fee agreement with the Public Guardian and Trustee.

The motion judge disregarded the agreement and fixed fees based on time spent.

The Court of Appeal allowed the appeal, holding that the motion judge erred by failing to apply the two-part test from Raphael Partners v. Lam to determine whether the contingency fee agreement was fair and reasonable under s. 24 of the Solicitors Act.

The matter was remitted to a motion judge to assess the reasonableness of the agreement.

The original minority shareholder of a closely held corporation brought an oppression action against the majority shareholder and the company.

Due to ill health, he assigned his shares, contractual rights, and the oppression claim to the appellant.

The motion judge and Divisional Court held the assignment of the cause of action was invalid.

On appeal, the Court of Appeal found the assignment valid, as it fell within the exception to the rule against champerty and maintenance because the cause of action was ancillary to the assigned property interest in the shares.

The appellant appealed a finding of contempt for failing to comply with a court order requiring him to transfer 'any and all other evidence or documents in his possession' to a supervising solicitor.

The appellant had retained copies of the materials and later disseminated them.

The Court of Appeal dismissed the appeal, holding that the retained copies fell within the scope of the order.

The Court also rejected the argument that the appellant could not be in contempt of an order that was later set aside, noting that the order had to be complied with while it was in force.

These consolidated appeals addressed the interpretation and application of the amended summary judgment regime under Rule 20 of the Rules of Civil Procedure.

The Court of Appeal held that summary judgment may be granted not only where claims or defences are without merit or the parties agree, but also where the motion judge can achieve a full appreciation of the evidence and issues required to make dispositive findings on the motion record, possibly supplemented by limited oral evidence.

The court articulated the “full appreciation” test, confirmed that the standard of review on whether there is a genuine issue requiring a trial is correctness, and explained the proper use of the new powers to weigh evidence, evaluate credibility, draw inferences, and hear oral evidence on discrete issues.

Applying those principles, the court dismissed the Combined Air, Misek, and Parker appeals, dismissed the Mauldin appeal, and allowed the Bruno appeal by setting aside summary judgment and dismissing the motion.

The defendants sought leave to appeal a decision that vacated an order for security for costs against two plaintiffs and reduced the quantum against a third in a solicitor's negligence action.

The court refused leave to appeal regarding the test of impecuniosity, as the issue of the plaintiffs' ability to borrow funds was not raised below.

However, the court granted leave to appeal regarding the quantification of security for costs, the reliance on inadequate evidence of financial needs, and the application of the victim's Bill of Rights, but only in respect of the third plaintiff.

The respondent patient was in a persistent vegetative state on a mechanical ventilator.

The appellant treating physicians proposed to withdraw life support and provide palliative care, arguing that the life support was medically futile and did not require the consent of the patient's substitute decision-maker.

The substitute decision-maker refused consent.

The Court of Appeal held that the withdrawal of life support and the administration of end-of-life palliative care are integrally linked and constitute a 'treatment package' under the Health Care Consent Act.

Therefore, the physicians required the substitute decision-maker's consent, and in the absence of consent, were required to refer the matter to the Consent and Capacity Board.

The appellants appealed an order dismissing their claim.

The Court of Appeal upheld the motion judge's finding that the limitation period had expired in September 2006, two years after the trustee had knowledge of the underlying facts.

The subsequent acquisition of corporate control by a new individual did not restart or affect the running of the limitation period against the corporation.

The appeal was dismissed with costs.

The appellants appealed a trial judge's finding that the deceased's surviving husband was the beneficial owner of certain corporate shares, despite the deceased's estate being the legal owner.

The appellants argued this required a finding of fraud or an express trust.

The Court of Appeal dismissed the appeal, holding that under the Business Corporations Act, beneficial ownership is not limited to ownership through a formal trustee and can exist without fraud.

The court found the deceased was implicitly a bare trustee for her husband, who had absolute control of the shares.

The court also rejected arguments that the action was barred by the Trustee Act limitation period, as no personal wrong was alleged against the deceased.

The moving parties brought a motion for security for costs of an appeal and for the costs awarded on a summary judgment motion.

The moving parties relied on the residual 'other good reason' category under rule 61.06 of the Rules of Civil Procedure.

The motion judge dismissed the motion, finding no compelling reason to order security for the costs of the appeal or to require an advance payment of the summary judgment costs award, which was automatically stayed by the appeal.