John W. Montgomery

The appellants appealed an interlocutory order requiring $4,000,000 from the proceeds of the sale of their property to be paid into court as security for the respondents' damages claim.

The Divisional Court granted the appeal and set aside the order, finding that the motion judge erred in law by applying the general test for an interlocutory injunction rather than the stringent test for a Mareva injunction.

The court held that there was no evidence of a real risk of asset dissipation, no undertaking as to damages was provided, and the alternative argument under Rule 45.02 failed because the respondents sought damages rather than an interest in a specific fund.

The moving party police services board brought a motion to quash an application for judicial review of its decision to award a towing contract to a competitor of the responding party.

The responding party alleged the procurement process was tainted by corruption and bias involving a senior police officer.

The Divisional Court granted the motion to quash, finding that the decision to award the towing contract was a private, commercial decision rather than an exercise of statutory power with a sufficiently public character.

As such, the decision was not amenable to judicial review under the Judicial Review Procedure Act.

The applicant, Jim’s Towing, sought judicial review of the Durham Regional Police Service’s decision to award a towing contract to another company, alleging corruption and bias in the process.

The court found that the decision was a commercial one, not a public law matter, and thus not subject to judicial review.

The application was quashed for want of jurisdiction.

The Court of Appeal for Ontario dismissed the appeal by the appellants, finding no palpable and overriding error or extricable legal error in the motion judge’s interpretation of minutes of settlement incorporated into a court order.

The court held that the motion judge correctly applied contractual interpretation principles, considered the relevant factual matrix, and properly refused to rely on subjective and contradictory evidence.

The appellants’ argument regarding severance of joint tenancy was rejected.

Costs of $8,000 were awarded to the estate.

The moving parties sought leave to appeal a decision that ordered them to pay the net proceeds of sale of certain lands into court as a term of dismissing a motion for a Mareva injunction.

The Divisional Court granted leave to appeal on this specific issue.

Costs of the motion for leave to appeal were fixed at $5,000 and reserved to the panel hearing the appeal.

This endorsement addresses two motions: one by Kamali Design Home Builder Inc. ("Kamali") to declare UCY Construction & Project Management Inc.'s ("UCY") construction lien expired under sections 37 and 46 of the Construction Act, and a cross-motion by UCY to validate service of its statement of claim and extend the time for service.

The court granted Kamali's motion, declaring the UCY lien expired and dismissing the lien action, as UCY conceded the action had not been set down for trial within the statutory period.

UCY's motion to validate service was partially granted, validating service on the owner and Kamali, but not on the mortgagees, despite UCY's failure to explain the delay in service, due to actual notice and lack of prejudice.

Costs were awarded to Kamali for their successful motion, while no costs were ordered for UCY's service validation motion.

The plaintiff employee was laid off in March 2020 due to the COVID-19 pandemic and brought a motion for summary judgment claiming constructive dismissal.

The defendant employer argued the layoff was an Infectious Disease Emergency Leave (IDEL) under the Employment Standards Act, which negated the claim.

The court found that while the layoff qualified as an IDEL, the regulation did not preclude a common law claim for constructive dismissal.

Finding no implied term in the employment contract permitting a unilateral layoff and no condonation by the employee, the court held the plaintiff was constructively dismissed and awarded 15 months' notice.

The plaintiff brought a motion to discharge the defendant's construction lien, arguing it was discharged when the defendant inadvertently "registered" an application to delete it.

The defendant argued the lien was not discharged because the "registration" was incomplete as it was never certified by the Land Registrar and was subsequently withdrawn.

The court, applying statutory interpretation principles to the Land Titles Act and Land Registration Reform Act, held that "registration" is a staged process requiring both receipt and certification by the Land Registrar.

Since the application to delete the lien was received but not certified and was withdrawn, it was never fully registered, and thus the original lien was not discharged.

The plaintiff's motion was dismissed.

Following the dismissal of an appeal, the Court of Appeal for Ontario considered the appellant's claim for costs on a substantial indemnity scale.

The court found no exceptional circumstances to justify substantial indemnity costs and instead fixed the appellant's costs on a partial indemnity scale in the inclusive sum of $15,000.

The moving party sought a stay of the Court of Appeal's order dismissing its appeal, pending its application for leave to appeal to the Supreme Court of Canada.

The underlying case involved a claim for a constructive trust over funds allegedly obtained through fraud by the moving party's manager and used to purchase property owned by the responding party.

The motion judge applied the RJR-MacDonald test, finding that the proposed appeal raised a serious question regarding the scope of constructive trusts, that the moving party would suffer irreparable harm if the funds were released, and that the balance of convenience favoured maintaining the status quo.

The motion for a stay was granted.

Sase Aggregate Ltd. appealed a lower court decision that largely dismissed its claims against Michelle Langdon, wife of a former pit manager who defrauded Sase of over $2.1 million.

Sase sought a constructive trust over the proceeds of sale of a property owned by Langdon, alleging knowing receipt, knowing assistance, and unjust enrichment.

The application judge found Langdon had no knowledge of the fraud and that Sase failed to properly trace its funds into the property, except for an admitted amount of $177,632.38.

The Court of Appeal dismissed Sase's appeal, upholding the application judge's findings that Sase failed to establish the elements for knowing receipt, knowing assistance, or to properly trace the bulk of the funds into the property, and that Langdon's legitimate sources of funds were adequately explained.

The plaintiff requested a case conference to resolve a scheduling dispute for a mandatory mediation.

The mediator offered dates in late November, but the third party's counsel was only available starting December 11.

The court expressed exasperation at the parties' inability to resolve a two-week scheduling difference, directing them to agree to the December 11 date or face a case conference where a date would be summarily set and costs submissions heard.

The applicant sought a constructive trust over $2.3 million in proceeds from the sale of the respondent's property, alleging the respondent's husband, a former employee, stole the funds and funneled them into joint accounts to purchase and renovate the property.

The court dismissed the claims for knowing receipt and knowing assistance, finding no evidence the respondent knew of the alleged theft or received the funds for her own benefit.

The respondent proved the majority of the property funds came from legitimate sources.

However, the court found unjust enrichment for $177,632.28 that was directly traced from the husband's company account to the property, awarding that amount to the applicant and releasing the balance to the respondent.

The plaintiff, Hayley Middleton, brought a motion to amend her Statement of Claim in a wrongful dismissal action.

The proposed amendments included allegations that the defendant attempted to falsify an employment contract and employee file for litigation purposes, seeking increased aggravated and/or punitive damages.

The defendant opposed, arguing the claim was untenable and scandalous.

The court granted the motion, finding that the proposed amendment presented a tenable claim.

The judge reasoned that the alleged conduct could potentially qualify as post-termination conduct related to the manner of dismissal, which is compensable in damages, or, in rare circumstances, serious litigation misconduct that could attract damages, rather than solely costs.

The plaintiff, David Westlake, sought leave to amend his statement of claim to add a new cause of action related to alleged deficiencies in the construction of a roadway, beyond the initial claim concerning a cul-de-sac.

The defendants opposed the amendment, arguing the limitation period had expired and that they would suffer non-compensable prejudice.

The court found that the plaintiff's claim was reasonably discovered in January 2019, when a geotechnical report revealed the extent of the roadway damage, and that the delay in seeking amendment was not exceptional.

The court also found no actual non-compensable prejudice to the defendants, including due to the death of a key individual for one defendant, as the roadbed remained available for inspection and no procedural steps had been taken.

The motion for leave to amend was granted, without prejudice to the defendants' ability to raise a limitation defence at trial.

The appellant township disqualified the respondent's tender for failing to include the company name and return address on the outside of the sealed envelope, as required by the tender process.

The respondent sued for breach of contract.

The trial judge found the respondent's tender was in substantial compliance with tender requirements and that the omission was a mere irregularity.

The trial judge awarded damages representing the respondent's lost profit, finding it had submitted the lowest bid and would have been awarded the contract.

The Court of Appeal upheld the trial judgment, dismissing the appeal and awarding costs to the respondent.

The appellant appealed a trial judgment finding him liable for damages based on negligence, nuisance, and the strict liability doctrine of Rylands v. Fletcher.

The trial judge found that the appellant had dumped thousands of truckloads of material on his rural property, improperly constructed a swale, and obstructed a culvert, all of which caused severe flooding to the respondent's neighbouring property over more than 12 years.

The trial judge awarded general damages of $250,000 and punitive damages of $125,000, totaling $390,000.

The appellant challenged only the damages awards.

The Court of Appeal upheld the trial judgment, finding no palpable error in the general damages award and rejecting arguments that the punitive damages were excessive or unsupported by evidence.

In a supplementary endorsement following an application regarding an estate, the court addressed three issues.

On consent, the court ordered that the distribution of the residue of the estate be delayed until the termination of the life estate in the applicant's favour.

The court declined the applicant's request to treat a vehicle as part of the household contents.

The court also declined the applicant's request to replace the named estate trustees, noting that no formal application for removal had been brought and a testator's choice of trustees is not lightly interfered with.

Following a trial where the applicant was unsuccessful in setting aside her late husband's will for undue influence but successful in obtaining an $85,000 lump sum support order under the Succession Law Reform Act, the court determined costs.

The applicant sought over $114,000, while the respondents argued the applicant should pay them a net amount of $42,518.87.

Applying Rule 57 and noting the mixed success, excessive time claimed by the applicant, and the respondents' improper pressure on the testator, the court awarded the applicant costs fixed at $51,940.27 inclusive of disbursements and HST.

The applicant, Pamella Poitras, brought an application against her stepchildren challenging the 2013 will of her deceased husband, Gilles Poitras, on grounds of undue influence and lack of testamentary capacity.

She also sought dependant's relief under the Succession Law Reform Act.

The court found that while suspicious circumstances existed regarding undue influence, the evidence did not establish coercion sufficient to set aside the will.

The court also found Gilles had testamentary capacity.

However, the court determined that Gilles had not made adequate provision for Pamella's proper support and awarded her a lump sum of $85,000 under the SLRA, in addition to her life estate in the matrimonial home and its contents.