John K. Downing

The defendant brought a motion to find the plaintiffs in civil contempt for allegedly breaching an interim order that mandated joint operation of a corporation, restricted disclosure of litigation details, and required the sharing of corporate information and financial reports.

The court found that the plaintiffs intentionally breached the order by failing to provide access to corporate records and failing to deliver monthly financial reports, resulting in formal findings of contempt.

The court also found the plaintiff breached the disclosure restrictions but exercised its discretion not to make a formal contempt finding on that ground.

The allegations of failing to jointly operate the corporation were dismissed.

The appellant, a fitness club operator, appealed a judgment declaring it had lost its right to extend its commercial lease with the respondent landlord.

The application judge found the appellant had breached the lease by: (1) operating a fitness club at Park Road in violation of geographic non-compete restrictions; and (2) failing to calculate and report gross revenue in accordance with lease provisions for percentage rental payments.

The appellant was given notice to cure but failed to do so.

The Court of Appeal dismissed the appeal, finding no overriding or palpable errors in the application judge's interpretation of the lease, rejection of waiver and promissory estoppel defences, and refusal to grant relief from forfeiture.

This is a costs endorsement following an appeal where the Court of Appeal set aside the order of the application judge dated October 5, 2015.

The parties had contested two issues on the application with divided success.

The application judge had reduced the respondent's costs from an agreed amount of $42,500 to $30,000 due to partial success.

On appeal, the Court of Appeal determined that the appellant succeeded on both issues argued at the application and therefore was entitled to the full agreed costs amount of $42,500 for the application below, in addition to $20,000 for the costs of the appeal.

The Ontario Petroleum Institute (OPI) brought a motion for leave to intervene in an appeal concerning the property tax assessment of gas gathering lines.

The underlying appeal challenged the Ontario Energy Board's decision that the lines were 'pipe lines' under the Assessment Act.

The court granted OPI leave to intervene on terms, finding that OPI had an interest in the subject matter and could provide a useful and distinct perspective on the technical meaning of 'transmission' and 'transportation' in the gas industry.

The plaintiffs brought a motion for an interlocutory injunction to restrain the defendants from soliciting customers and making defamatory statements.

The parties agreed to adjourn the main motion, but the court had to decide a jurisdiction challenge and a request for an interim injunction.

The court held that Ontario had jurisdiction, as the exclusive forum clause in the parties' recent Termination Agreement superseded the Quebec forum clause in their earlier Dealership Agreement.

However, the court denied the interim injunction, finding that the plaintiffs' year-long delay in bringing the motion undermined their claim of irreparable harm pending the return of the main motion.

The appellant appealed from a Superior Court decision that found a commercial lease for fitness club premises did not include the basement, despite the tenant's long-standing use of it.

The Court of Appeal reversed, holding that when the lease is interpreted in light of all surrounding circumstances—particularly email correspondence between the parties' lawyers—the parties clearly intended to lease the entire premises, including the basement, on a lump sum basis.

The court found the application judge erred in law by failing to consider all relevant circumstances, despite acknowledging the need to do so.

The plaintiff, The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario, moved to strike the jury notice served by the defendant, AXA Insurance Canada, pursuant to sections 108(2) and 108(3) of the Courts of Justice Act.

The court determined that the core of both the plaintiff's claim and the defendant's counterclaim was for declaratory and/or other equitable relief, specifically concerning the validity and coverage of an insurance policy.

As claims for declaratory or equitable relief are mandated to be tried without a jury under section 108(2) of the Act, the court granted the motion and struck the jury notice.

The court also noted that while complexity was not argued, it would not have struck the jury notice on the discretionary grounds of mixed fact and law at this early stage without more evidence.

The defendants brought a motion to dismiss the plaintiff's action for delay, which arose from a 2001 commercial transaction where the plaintiff sued the defendants for alleged negligence in securing deferred payments.

The court analyzed the periods of delay, finding that much of the delay was attributable to both parties or solely to the defendants.

The sole period of delay attributable to the plaintiff (16 months) was not deemed inordinate or inexcusable.

The defendants failed to demonstrate actual prejudice or rebut the presumption of prejudice, as any memory deterioration occurred before the relevant delay period, and the defendants themselves had not taken steps to preserve evidence.

The motion was dismissed, and costs were awarded to the plaintiff.

The appellant, Century Plumbing and Heating, appealed a summary judgment decision that removed the respondents, ADT Security Services Canada Inc. and Intercon Security Limited, from several actions relating to a flood in a Toronto tower.

The appellant argued the motions judge erred in finding the Building Automation System had frozen, in not considering video evidence, and in relying on inadmissible evidence.

The Court of Appeal dismissed the appeal, finding the motions judge's conclusions were supported by the evidence, including an admission by the building owner that the system had frozen, and that the appellant failed to establish a genuine issue requiring a trial.

A commercial landlord brought an application seeking interpretation of a lease and additional rent for a basement area occupied by the tenant’s assignee following insolvency proceedings.

The court examined the lease language, surrounding negotiations, and principles of contractual interpretation under Sattva.

It held that the basement was not part of the leased premises, but the lease rent was calculated on a per‑square‑foot basis.

The tenant’s assignee was therefore liable to pay rent for the basement based on the lease rate for its square footage from the date of assignment.

The landlord’s separate claim for rectification of the lease to reflect greater square footage of the upper floors was dismissed because the landlord had expressly waived the contractual right to remeasure the premises.

On five identical summary judgment motions, the moving parties sought dismissal of claims and third party and fourth party claims arising from a flood in a commercial office tower allegedly caused by a failed radiator pipe repair.

The responding party argued that a 1:06 a.m.

BAS alarm could have related to low water pressure and that the moving parties negligently failed to monitor or report it.

Applying the post-2010 summary judgment framework under Rule 20 and Hryniak, the court held there was no genuine issue requiring a trial.

The surveillance video and proposed further expert inspection did not amount to cogent admissible evidence capable of establishing a triable issue.

Summary judgment was granted and all claims against the moving parties were dismissed.

The plaintiffs brought a motion compelling production of certain investigative documents, including an internal “Incident Bulletin” and employee witness statements, arising from a petrochemical facility shutdown allegedly caused by repair work performed by the defendants.

The defendants asserted solicitor‑client and litigation privilege and sought orders requiring the plaintiffs to destroy copies of the documents already in their possession.

The court held the defendants failed to establish that the documents were created for the dominant purpose of litigation or for obtaining legal advice, finding instead that they were generated primarily for operational investigation and business relationship management.

In any event, the court found that the defendants voluntarily disclosed the documents to the plaintiffs through a senior manager with ostensible authority, constituting waiver of any privilege.

The plaintiffs’ motion for production of the documents was granted and the defendants’ motion asserting privilege was dismissed.

The plaintiff was injured in a skiing accident and subsequently underwent spinal surgery performed by the defendant.

During the surgery, an instrument slipped, causing further nerve damage.

The defendant informed the plaintiff of the surgical accident the following day.

The plaintiff commenced an action against the ski resort but did not sue the defendant until nearly five years later, after receiving an expert report from the ski resort's counsel suggesting the defendant breached the standard of care.

The defendant moved for summary judgment on the basis that the action was statute-barred.

The court granted the motion, finding that the plaintiff failed to exercise due diligence in investigating the surgical accident, and the claim was discoverable well before the receipt of the expert report.

The moving parties sought summary judgment dismissing third party claims and cross‑claims arising from flood damage in a Toronto office tower allegedly caused by a plumbing failure and monitoring issues with a building automation system.

The responding parties alleged that the moving parties, as building owner or property manager, were liable in contribution and indemnity or owed independent duties in tort.

The court found the claims were premised on factual errors regarding corporate roles and ownership, and that the property manager was protected by a limitation of liability clause in the tenants’ leases that barred claims for contribution or indemnity.

The responding parties produced no evidence establishing a genuine issue for trial, and a proposed amendment to plead an independent tort was unsupported and limitation‑barred.

Summary judgment was therefore granted dismissing the claims against the moving parties and the motion to amend was refused.

The representative plaintiff brought a motion to certify a proposed class action for settlement purposes under the Class Proceedings Act, 1992, and sought approval of a negotiated settlement and class counsel fees.

The claim arose from participation in a university-affiliated forgivable loan program that generated charitable donation tax receipts which were later disallowed by the Canada Revenue Agency, resulting in reassessments and interest liabilities for participants.

Approximately 200 individuals were proposed as class members.

The settlement provided refunds equal to 10% of amounts donated under the program and permitted class members to elect payment or donate the amount to the university.

The court found that the certification criteria under s. 5(1) of the Act were met and that the settlement was fair, reasonable, and in the best interests of the class, and approved class counsel fees.

The applicant sought judicial review of a preliminary decision by the Child and Family Services Review Board regarding its jurisdiction to hear a complaint.

The Divisional Court dismissed the application for prematurity, applying the principle that courts should not interfere with ongoing administrative proceedings absent exceptional circumstances.

The court found no exceptional circumstances and noted that the applicant could challenge jurisdiction on a full record after a decision on the merits.

The stay of proceedings was lifted.

Eleven children's aid societies brought an application for judicial review challenging the Ministry of Children and Youth Services' decisions regarding their funding allocations for the 2009/2010 fiscal year.

The applicants argued that the Minister breached statutory processes, fettered her discretion by mechanically applying a funding model, exhibited a reasonable apprehension of bias, and improperly delegated review authority to Regional Directors.

The Divisional Court dismissed the application, holding that the allocation of public funds is a core policy function not subject to judicial review absent bad faith or improper purpose.

The court also found that the delegation of authority was valid and that there was no apprehension of bias or fettering of discretion.

The applicants sought a declaration of ownership by adverse possession over lands owned by the respondent agricultural society.

The application judge granted the declaration, finding that the respondent had abandoned the lands and could not rely on holding them for future development as a current use.

On appeal, the Court of Appeal allowed the appeal, holding that the application judge failed to properly apply the inconsistent use test.

The Court confirmed that holding lands for future development qualifies as a current use during the statutory period, and therefore the applicants' use was not inconsistent with the respondent's intended use.

The appellant appealed a judgment fixing a rent increase.

The appellant conceded that the application judge was entitled to reject the evidence of its appraiser.

The Court of Appeal found that a substantial increase in rent was justified based on the respondent's appraiser's evidence, noting that fixing the exact amount is more art than science.

The appeal was dismissed with costs.

The appellant appealed a trial judgment finding it liable for breach of contract.

The dispute centered on whether the appellant knew the building was not to involve post and beam construction and whether it breached the contract by unilaterally changing the design.

The Court of Appeal found no misapprehension of evidence by the trial judge, agreeing that the parties were ad idem on the terms and that the appellant's delivery of draft drawings using an uncontracted construction technique constituted a breach.

The court also upheld the trial judge's measure of damages, which aimed to put the respondent in the position it would have been had the contract not been breached.

The appeal was dismissed with costs.