John J. Adair

Following a trial in which the plaintiff succeeded on oppression and unjust enrichment claims against two of nine defendants and was awarded $1,313,495.13 — less than sought — the court fixed costs on a partial indemnity scale.

The court considered the divided success, the moderate complexity of the litigation, and the principle of proportionality under s. 131 of the Courts of Justice Act and Rule 57.

The court declined to treat the trial conduct of either party as a cost factor, but reduced the disbursement for the expert report given its partial admissibility.

Partial indemnity fees of $400,000 plus HST and disbursements of $120,000 including HST were ordered against the successful defendants.

The plaintiffs, a law firm, brought a motion for further and better affidavits of documents from two defendants (spouses) and for their further examination for discovery.

The defendants refused to answer certain discovery questions based on spousal privilege.

The court determined that under section 11 of the Ontario Evidence Act, spousal privilege applies only to communications received from a spouse, not communications made to a spouse.

Therefore, each defendant must disclose their communications sent to their spouse but may claim privilege over communications received from their spouse.

The plaintiffs were successful and awarded costs.

The appellant, mother of a man who killed his father, appealed a motion judge's order striking her negligence claim against two psychiatrists who treated her son.

The motion judge had struck the claim alleging negligence in treatment, finding no established duty of care and that imposing such a duty would create an impossible conflict with the duty owed to the patient.

The Court of Appeal allowed the appeal, finding that while the duty of care was not within an established category, the conflict analysis was speculative and should be determined on a proper evidentiary record rather than at the pleadings stage.

The court distinguished the case from precedents involving child protection and medical treatment of pregnant women, emphasizing that the patient and his parents shared a common interest in appropriate treatment.

The decision concerns the certification and approval of a partial settlement in a class action regarding business interruption insurance for dentists, specifically Aviva’s “Triple Guard” policies marketed by CDSPI.

The court certified the class action for settlement purposes as against CDSPI and approved the settlement, finding that all statutory criteria were met and that the settlement was fair and reasonable.

The court also dismissed Aviva’s motion for a stay, holding that disclosure of the settlement was timely and that Aviva’s rights were not prejudiced by the settlement or its timing.

This decision addresses a corporate dispute involving the sale of shares in Provix Inc. and the terms for a shotgun buy/sell process for NT&T Investment Partners Ltd., the holding company for Stanmech Technologies Inc. The court orders the transfer of shares in Provix to Cruise and TC Provix Holdco Inc. at a specified price, with a portion of the funds held in trust pending further determination.

The court also determines that Cruise and Tyrell Corp. must trigger the shotgun process for NT&T/Stanmech, based on the equities and the parties' conduct.

The decision provides detailed guidance on the implementation of the buy/sell process and addresses requests for further disclosure and ancillary relief.

The decision concerns a motion by Saad Aljabri and related parties for leave to issue a counterclaim in a complex civil action.

The court dismissed the motion, finding that the proposed counterclaim for abuse of process and conspiracy was statute-barred under Ontario law, and that the applicants failed to prove that Saudi law applied or that any exception to the limitation period existed.

The court also found that the proposed claims for declaratory relief against additional parties were not supported by a tenable cause of action.

The risk of prejudice to the plaintiffs, including loss of the scheduled trial date and increased costs, further supported dismissal.

The decision addresses a motion by Saad Aljabri, Mohammed Aljabri, and various corporate defendants to vary Mareva orders freezing their worldwide assets, seeking the release of frozen funds to pay legal fees.

The court grants the motion for all moving parties except Dreams International Advisory Services Ltd., finding that the Mareva Defendants have shown they lack access to other assets or reliable third-party funding, and that a variation is necessary to ensure a fair trial.

The court dismisses the motion by Dreams, finding insufficient evidence that it lacks access to other funds.

The decision reviews the legal test for varying Mareva orders and applies a balancing of interests, including the merits of the case, the complexity of the litigation, and the conduct of the parties.

The plaintiffs brought a motion seeking a declaration that a document ("the Proffer") provided by the defendant to the Attorney General for Canada (AGC) under s. 38 of the Canada Evidence Act was not subject to privilege or that any such privilege had been waived, and an order for its production.

The defendant asserted litigation privilege.

The court found that the Proffer was created for the dominant purpose of preparing for litigation, making it presumptively protected by litigation privilege.

The court further held that the disclosure of the Proffer to the AGC, being a statutory compulsion, did not constitute a voluntary waiver of privilege, nor did fairness and consistency require waiver.

The plaintiffs' motion was dismissed.

The applicant sought an interlocutory injunction to be restored as a director of a closely held corporation after being unilaterally ousted by his equal partner, the respondent.

The respondent claimed authority to remove the applicant based on his role as president of the holding company and alleged the applicant had abandoned his post.

The court found the applicant established a strong prima facie case that the respondent lacked authority and acted in a conflict of interest.

Finding irreparable harm and a balance of convenience favouring the applicant, the court granted the injunction, reinstating the applicant as a director upon specific terms to level the playing field pending trial.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning a trial judge's decision on fraudulent conveyance and oppression claims.

The trial judge had found oppression but did not rule on fraudulent conveyance, basing the oppression finding on a theory not pleaded or argued.

The Court of Appeal found the trial judge's reasons legally insufficient, internally inconsistent, and procedurally unfair, as the decision was based on an unpleaded "reasonable expectation" of a reserve fund.

The court determined it could not conduct a de novo analysis or substitute findings due to credibility issues and the record not inevitably yielding a particular outcome.

Consequently, the appeal was allowed, the trial judgment set aside, and the matter remitted for a new trial.

This appeal concerned a dispute over the purchase and sale of a luxury home, where the purchaser sought rescission of the Agreement of Purchase and Sale due to fraudulent misrepresentation and latent defect.

The motion judge granted partial summary judgment for rescission and equitable damages against the seller.

The appellants (seller and co-defendants) argued errors in the finding of fraudulent misrepresentation, latent defect, and the appropriateness of partial summary judgment given a pending conspiracy claim.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding of fraudulent misrepresentation based on the seller's failure to disclose safety risks and false representations, and upheld the partial summary judgment, finding no risk of inconsistent findings between corporate and personal liability for fraud.

This is an appeal from a medical malpractice judgment where the trial judge found the appellant physician negligent in treating a stroke victim, leading to permanent injuries.

The core issue on appeal was causation: whether the trial judge erred in finding that the physician's negligence caused the injuries, specifically by not requiring the plaintiff to establish precisely which treatment option would have prevented the unfavourable outcome.

The Court of Appeal dismissed the appeal, affirming the trial judge's robust and pragmatic application of the "but for" causation test, particularly in the context of an evidentiary gap created by the defendant's negligence.

The respondents brought a medical malpractice action after the plaintiff suffered a severe brain injury from a cardiac arrest during a caesarean section.

The trial judge found the primary obstetrician (Dr. Padmore), the anesthesiologist (Dr. Jamensky), and the hospital liable for negligence.

On appeal, the Court of Appeal allowed the appeals of Dr. Padmore and the hospital, finding the trial judge erred in his legal causation analysis regarding their respective pre-delivery acts and omissions.

The Court dismissed Dr. Jamensky's appeal, upholding the trial judge's findings that he breached the standard of care by prematurely converting the patient to a general anesthetic and that this negligence caused the cardiac arrest.

Dr. Jamensky was held solely liable for the agreed $12 million in damages.

The appellants, Tyson Rogerson and his adoptive parents, appealed the dismissal of their medical malpractice action against two physicians, Dr. Elyse Savaria and Dr. Nkiruka Nwebube.

The appellants argued that the physicians breached their duty of care by failing to report a suspected risk of harm to Tyson to the Children's Aid Society (CAS) under s. 72 of the Child and Family Services Act, which they contended would have prevented Tyson's catastrophic brain injury.

The Court of Appeal upheld the trial judge's findings that the physicians did not breach the standard of care in failing to report, and even if there was a breach, the appellants failed to prove causation, as the CAS would not have intervened in a way that would have prevented the injury.

The appeal was dismissed.

The plaintiffs moved to compel the defendants, Saad Aljabri and Mohammed Aljabri, to produce law firm trust ledgers and to answer certain questions from examinations.

The court held that trust ledgers are presumptively protected by solicitor-client privilege and that the plaintiffs failed to rebut this presumption.

The court further concluded that the "crime/fraud" exception to solicitor-client privilege does not apply to civil wrongs, including civil fraud, following the principle of horizontal stare decisis.

Consequently, the motion to compel production of trust ledgers was dismissed.

The motion to compel Mohammed Aljabri to answer undertakings and other questions was allowed, subject to redactions for privileged information in bank statements.

This endorsement addresses the settlement of an order following a summary judgment granted in favour of the plaintiff.

The parties disagreed on the form of the order.

The court clarified that an order must strictly reflect the operative language and relief granted in the prior reasons for decision, and cannot be used to introduce new or additional relief, re-argue points, or vary previously granted relief.

Consequently, several paragraphs from the plaintiff's proposed draft order, which sought new relief or procedural directions not granted in the original reasons, were excluded from the final order.

The parties to a putative class action agreed to discontinue the action with prejudice, as similar claims were being pursued in a proposed class proceeding in British Columbia.

The court approved the discontinuance pursuant to s. 29(1) of the Class Proceedings Act, 1992, and dispensed with the requirement to give notice to the class, noting the early stage of the proceeding and the continuation of the claims in British Columbia.

The applicant brought a motion to compel a witness, his brother, to answer questions and produce documents refused during a Rule 39.03 examination.

The examination was conducted to gather evidence for a pending contempt motion against the trustees of family trusts for failing to produce accounting documents.

The court ordered the witness to answer the questions, finding that the information sought regarding certain mortgages had a semblance of relevancy to the issues on the contempt motion.

The plaintiff, a holding company for a professional athlete, purchased a luxury home from the defendant corporation.

Shortly after moving in, the occupants were confronted by a stranger looking for the previous tenant, a known crypto fraudster who had been kidnapped and whose angry investors frequently visited the property.

The plaintiff brought a motion for summary judgment seeking rescission of the agreement of purchase and sale.

The court granted the motion, finding that the vendor made a fraudulent misrepresentation by marketing the property as private and secure while knowing of the ongoing safety risks.

The court also found that the safety risk constituted an undisclosed latent defect that rendered the property unfit for habitation.

The court ordered rescission of the contract and, in the alternative, equitable damages.

This endorsement addresses the issue of costs following a successful dependant's support claim under the Succession Law Reform Act.

The applicant sought full indemnity costs, while the respondents argued for partial indemnity.

The court determined that the deceased testator was responsible for the litigation by failing to make adequate provision for the applicant's support, thus justifying costs payable from the estate.

However, considering the applicant's significantly higher settlement offer compared to the trial outcome, the respondents' more reasonable offer, and the applicant's excessive legal staffing, the court awarded costs on a partial indemnity basis, fixed at $160,000.00, inclusive of fees, disbursements, and taxes, payable by the Estate Trustees.