John Albert Annen

The defendants brought a motion to dismiss a defamation action under section 137.1(3) of the Courts of Justice Act, arguing that their publications regarding childcare practices at a licensed daycare facility related to a matter of public interest.

The plaintiffs opposed the motion, arguing that the defendants' coordinated campaign of negative online reviews and social media posts were defamatory, malicious, and caused serious reputational and economic harm.

The court found that while the publications related to a matter of public interest, the plaintiffs established substantial merit to their defamation claim and that the defendants had no valid defences.

The court further found that the harm suffered by the plaintiffs outweighed the public interest in protecting the defendants' expression, particularly given evidence of a coordinated malicious campaign to shut down the daycare.

The motion was dismissed.

The Court of Appeal for Ontario dismissed the appeals of both the Attorney General of Canada and Katherine Cannon from a trial judgment finding them liable for abuse and loss of Indigenous culture suffered by the respondents, three sisters.

The court held that Canada owed an ad hoc fiduciary duty to the respondents as de facto wards in a unique interprovincial context, and that Canada breached this duty by shelving a plan to return the children to their Indigenous maternal family.

The court also upheld findings of negligence and joint and several liability for damages.

The court clarified the limits of sui generis fiduciary duty, the requirements for ad hoc fiduciary duty, and the application of proximity and foreseeability in negligence.

The defendant/plaintiff by counterclaim, Durham Label Inc., brought a motion seeking costs for wasted discovery time and a further and better affidavit of documents from the plaintiff/defendants by counterclaim (Labow Defendants).

The court dismissed the motion, finding that the request for further documents should be addressed after examinations for discovery, and that a motion for interim costs thrown away is generally not appropriate during the course of a proceeding.

The applicants, a commercial tenant and its owner, sought relief from forfeiture after being evicted by their landlord.

The tenant argued that a new ten-year lease had been agreed upon in 2019 and that COVID-19 legislation prevented the eviction.

The court found that no new lease was formed, the tenancy was month-to-month, and the COVID-19 protections only applied to evictions for rent arrears, not expired leases.

The application was dismissed because relief from forfeiture is not available for the termination of a month-to-month tenancy.

The added defendants (purchasers) moved to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiff, to lift a stay on a writ of possession, and for the return of their purchase funds after a failed real estate closing.

The court found the plaintiff failed to make full and frank disclosure when obtaining the CPL and that the equities favoured the purchasers.

The court discharged the CPL, lifted the stay on the writ of possession, and ordered the vendors' solicitor to immediately return the purchase funds to the purchasers, as the vendors failed to provide vacant possession and clear title on closing.

The appellant appealed an order confirming emergency orders issued by the municipality's Chief Building Official under the Building Code Act, which required the appellant to pay the costs of terminating an immediate danger posed by an exposed wall.

The appellant argued the application judge failed to consider equitable set-off.

The Court of Appeal dismissed the appeal, finding that the appellant had not raised the issue of equitable set-off before the application judge and it would be contrary to the interests of justice to allow the new argument on appeal.

The appellant sought to appeal an interlocutory order that directed estate funds to be paid out of court and removed an estate trustee.

The appellant sought directions and an accounting, effectively attempting to secure funds for a counterclaim against the estate.

The Divisional Court granted leave to appeal but dismissed the appeal, finding the original motion was improperly brought and the appellant had not established the prerequisites for a Mareva injunction to hold the funds as security.

The plaintiffs, three sisters, brought an action against their aunt and the Attorney General of Canada, alleging that they were physically abused by their aunt while living in her home as children over fifty years ago.

They claimed damages for assault and battery, and breach of fiduciary duty.

The court reviewed extensive testimony from the plaintiffs, the aunt, and other family members.

Applying the balance of probabilities standard and considering the frailties of memory regarding distant events, the court found the plaintiffs' evidence to be unreliable due to inconsistencies and lack of detail.

The action was dismissed against both defendants.

The defendant brought a motion to extend the time to serve and file an appeal from a Small Claims Court decision that struck its defence and awarded damages to the plaintiff.

The defendant had repeatedly failed to comply with court orders, failed to pay costs, and failed to attend trial with its witness.

Applying the Laczko factors, the Divisional Court found that while the defendant intended to appeal and explained the delay, the appeal lacked merit and the plaintiff would suffer prejudice.

The motion to extend time was dismissed.

The respondent purchased a cottage from the appellants and subsequently discovered fire damage in the roof structure that was not identified during a home inspection.

The respondent successfully sued in Small Claims Court for $25,000 on the basis of a latent defect.

On appeal, the Divisional Court upheld the trial judge's finding of liability, agreeing the defect was latent and rendered the property uninhabitable.

However, the court found the trial judge erred in assessing damages by including costs for betterment and unrelated repairs.

The damages award was reduced to $11,500.

The respondent lawyer brought a motion to oppose confirmation of an assessment officer's certificate, which ordered him to refund $13,308.55 to his former clients.

The clients had retained the lawyer under a block fee agreement but terminated the retainer before trial.

The assessment officer reduced the lawyer's final account and deducted the full amount of the original retainer paid.

The court found no procedural unfairness in the assessment hearing but held that the assessment officer erred in principle by applying the full original retainer against the final account, as an earlier interim account had not been referred for assessment.

The court substituted an order requiring the lawyer to refund $6,947.04.

The moving party, a women's shelter, brought a motion to strike the responding party's negligence claim on the basis that the limitation period had expired.

The deceased was sexually assaulted on the shelter's premises by a third party and later murdered in an unrelated incident.

The court held that the recent amendments to the Limitations Act, 2002, which eliminated limitation periods for proceedings based on sexual assault, applied to negligence claims against third parties who owed a duty of care to the victim.

The court found sufficient proximity to establish a prima facie duty of care and dismissed the motion to strike.

Following a successful summary judgment application dismissing claims against condominium owners in a wrongful death action, the moving parties sought costs on a substantial indemnity basis.

The estate had alleged the owners owed duties as landlords or occupiers relating to a fatal fall from a balcony, but evidence established that the owners were not present and had no interaction with the deceased.

Prior to the hearing, the moving parties had delivered a formal offer to waive costs if the action was discontinued against them, which the estate declined.

The court held that the estate continued to pursue liability despite information indicating the owners were not involved in the events.

Taking into account the tragic circumstances of the death, the court fixed costs in a reduced amount rather than awarding substantial indemnity.

The tenants appealed an order of the Landlord and Tenant Board terminating their residential tenancy and ordering eviction for non-payment of rent.

The tenants argued they were denied procedural fairness when the Board Member made an interim order requiring rent payments into trust and subsequently refused to hear their applications against the landlord when they failed to comply.

The Divisional Court dismissed the appeal, finding the Member had the statutory authority to control the hearing procedure and that her actions were a model of procedural fairness.

The appellant fire chief appealed an order referring a fire safety inspection dispute back to the Office of the Fire Marshal.

The original inspection order required the installation of a sprinkler system.

The Fire Marshal upheld the order but allowed the respondents to submit alternative measures to the fire department for approval.

The fire department rejected the alternatives, and the appellant sought an order directing compliance.

The application judge found the Fire Marshal improperly delegated the final decision to the fire department without a mechanism for review, and referred the matter back to the Fire Marshal.

The Divisional Court dismissed the appeal, agreeing that the delegation was improper and the referral was a sensible exercise of discretion under s. 32 of the Fire Protection and Prevention Act.

The applicant spouse sought an extension of time under s. 2(8) of the Family Law Act to file an election for equalization of net family property following the death of her husband.

The application was brought after the six‑month limitation period had expired, largely due to delays in obtaining the deceased’s will and financial information from the estate trustee.

The respondent argued there were no apparent grounds for relief because the deceased allegedly had negative net family property.

The court held that conflicting calculations of the estate, questions regarding a mortgage transaction executed without the spouse’s consent, and potential remedies under s. 5(6) of the Act established apparent grounds for relief.

Finding the delay occurred in good faith and that no substantial prejudice resulted, the court granted the extension of time.