Jonathan Chen

The appellant City of Hamilton appealed a trial judgment finding it and ArcelorMittal Dofasco Inc. (AMD) jointly and severally liable for damages arising from periodic flooding of the respondent National Steel Car Limited's industrial property caused by wastewater discharge into a clogged drainage channel.

The trial judge awarded compensatory damages of approximately $5.3 million (apportioned equally between the defendants), punitive damages of $400,000 against the City and $500,000 against AMD, and granted a mandatory injunction requiring remediation and maintenance of the channel.

The City appealed on four grounds: (1) the equal apportionment of liability; (2) failure to find mitigation by National; (3) the punitive damages award; and (4) the terms of the injunction.

The Court of Appeal dismissed the appeal except for a clarification to the injunction language.

This appeal concerned the interpretation of two easements: a 15-foot wide right-of-way for ingress and egress, and a right-of-access to a well.

The appellants (servient tenement owners) sought declarations that the right-of-way did not include vehicular turnaround activity and that the well access was null and void.

The respondents (dominant tenement owners) sought declarations affirming their rights, an injunction against obstructions, and damages.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the right-of-way included the turnaround area based on latent ambiguity and ancillary rights, and that the right-of-access to the well had not been extinguished.

The Trustee of the Alexander Morris Sharpe Trust sought the court's advice and directions on whether legal fees for David and Natasha Sharpe could be paid from the trust, which was established for the "sole and exclusive" benefit of their minor son, Alexander Morris Sharpe.

The Office of the Children's Lawyer opposed, arguing the trust language was clear and restrictive.

The court ruled that the trust funds could not be used to pay the legal fees, as such payments would not be for the "sole and exclusive" benefit of the minor beneficiary, even if there was a collateral benefit.

This decision addresses a motion for partial indemnity costs arising from a successful pleadings motion brought by the defendants.

The plaintiffs, whose statement of claim was found deficient, sought costs themselves or costs in the cause, arguing mixed success.

The court determined that the defendants were substantially successful, as several claims were struck, some without leave to amend.

The court rejected the plaintiffs' arguments, emphasizing that a deficient pleading necessitated the defendants' motion.

Costs were fixed in favour of the defendants, payable by the plaintiffs.

In the context of CCAA proceedings, the court-appointed Monitor sought a Mareva injunction against a former executive, his company, and his spouse.

The Monitor alleged that the executive had misappropriated millions of dollars from the insolvent companies for personal use, including purchasing a yacht, private jet fractional interests, and real estate, while failing to remit significant taxes.

The court found a strong prima facie case of fraud and breach of fiduciary duty against the executive and his company, and inferred a real risk of asset dissipation given their ties to St. Lucia.

An uncapped Mareva injunction was granted against them.

However, the court found insufficient evidence of actual knowledge to establish a strong prima facie case of knowing assistance or receipt against the spouse, and instead ordered her to provide a statement of worldwide assets.

This is a pleadings motion brought by the defendants to strike various causes of action and allegations from the plaintiffs' statement of claim, including claims for piercing the corporate veil, fraud, breach of court orders, negligent misrepresentation, conversion, unjust enrichment, oppression, and conspiracy.

The court considered the legal sufficiency of the pleadings under Rule 21.01(1)(b) and Rule 25.11, and the possibility of granting leave to amend.

The court struck claims for breach of court orders, negligent misrepresentation, and conspiracy without leave to amend, finding they disclosed no reasonable cause of action or were frivolous/vexatious.

Claims for fraud, conversion, unjust enrichment, and oppression were struck with leave to amend, as the plaintiffs might be able to plead sufficient material facts.

The claim to pierce the corporate veil against individual defendants for fraudulent conduct was found sufficiently pleaded, but a declaration to treat corporate plaintiffs as one defendant was struck.

Allegations of false affidavits were struck due to absolute privilege, but allegations of pressuring employees to provide false statements were not.

The plaintiffs moved for an interlocutory injunction to prevent the defendant from terminating an agreement for the supply of water and wastewater treatment services.

The defendant had threatened to terminate the services on 60 days' notice unless the plaintiffs paid a massive retroactive price increase.

The court found that the injunction was prohibitory, but that the plaintiffs had met the higher standard of a strong prima facie case regardless.

The court held that the defendant's use of the termination clause to extort a unilateral price increase was a strong prima facie breach of the duty of good faith performance.

Finding irreparable harm and a balance of convenience favouring the plaintiffs, the court granted the injunction for nine months to allow the plaintiffs to build their own water recycling facilities.

The Ontario Securities Commission (OSC) brought a motion seeking an order for the issuance of Letters of Request in Commissions under section 152 of the Securities Act.

The OSC required evidence from two individuals, one residing in British Columbia and one in Massachusetts, USA, for a proceeding before the Capital Markets Tribunal concerning Bridging Finance Inc. and its respondents.

The respondents did not oppose the motion.

The court granted the order, finding that the proposed witnesses had relevant evidence and that the Letters of Request and Commissions accorded with Rule 34.07(2) of the Rules of Civil Procedure.

The appellant, Heritage Preservation Holdings, appealed a judgment requiring it to close the sale of a hotel property and allowing a holdback for deficiencies.

The appeal raised three issues: contract formation, an implied term regarding the first mortgage amount, and responsibility for certain property deficiencies.

The Court of Appeal dismissed the contract formation and implied term grounds, finding a binding agreement was formed and no such term could be implied.

However, the appeal was allowed in part regarding the deficiencies issue, specifically finding the appellant was not responsible for certain fire separation, kitchen exhaust, and fire suppression system deficiencies under the Agreement of Purchase and Sale's disclosure clause.

The holdback was maintained, but only for repairs for which the appellant was responsible.

On the eve of trial, the plaintiffs brought a motion for further documentary production and discovery after the defendants provided late answers to questions previously refused during examinations for discovery.

The defendants argued that issue estoppel applied due to previous unsuccessful refusals motions.

The court rejected the issue estoppel argument, finding that the defendants altered the litigation landscape by voluntarily providing the late answers.

The court ordered limited, file-specific documentary production relevant to the new answers, but denied broader discovery requests to avoid delaying the trial.

The plaintiffs sought judicial approval of a $100 million settlement in a class action regarding hidden foreign exchange fees in registered accounts, along with approval of class counsel's legal fees and representative plaintiff honoraria.

The court approved the settlement as fair and reasonable.

However, the court declined to approve the requested $25 million in legal fees based on a straight-line 25% contingency, finding that in a 'mega-fund' settlement, a multiplier and percentage cross-check must be used to avoid a windfall and maintain the integrity of the profession.

The court approved $20 million in legal fees, plus disbursements and taxes, and approved the requested honoraria for the representative plaintiffs.

The representative plaintiff brought a motion for approval of a $17 million settlement, a distribution protocol, and class counsel fees in a certified class action regarding prepaid payment cards.

The action alleged the defendants breached gift card regulations under the Consumer Protection Act by seizing expired balances and charging unauthorized fees.

After a summary judgment was granted in part and appealed by both parties, a settlement was reached.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class.

The court also approved the distribution protocol and class counsel's fee request of 30% of the settlement amount.

The appellant, Wayne Laski, and the Estate of Harold Morton Laski appealed a motion judge's decision to strike their action against BMO Nesbitt Burns Inc. and Norman Yu.

The action alleged negligent misrepresentation and breach of disclosure duty related to a transfer of securities from Harold Laski to a joint account with Wendi Laski, which passed by right of survivorship outside the estate.

The motion judge struck the estate's claim for non-compliance with procedural rules and the appellant's personal claim based on issue estoppel, collateral attack, abuse of process, and lack of duty of care/damages.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision to proceed with the motion in the appellant's absence due to repeated non-compliance with adjournment conditions.

The court also affirmed the striking of the personal claim, finding no error in the application of issue estoppel and noting the appellant's failure to demonstrate damages.

The plaintiffs brought a class action alleging that the defendant financial institutions breached their trust and fiduciary duties by failing to disclose markup fees charged on foreign currency conversions in registered accounts.

The parties brought cross-motions for summary judgment on the common issues, and the defendants moved for decertification.

The court found that the defendants breached the trust agreements by failing to disclose the amount of the markup fees.

The court ordered an accounting of profits to be determined at a reference, emphasizing the need to deter fiduciary misconduct.

The court dismissed the plaintiffs' claims for an elevated interest rate and punitive damages, and dismissed the defendants' motion to decertify the class action.

The representative plaintiff in a class action sought partial indemnity costs of $982,097.02 following a successful summary judgment motion against the defendants for breaches of gift card regulations.

The defendants argued that the parties should bear their own costs due to divided success, or alternatively, that the costs should be significantly reduced.

The court rejected the argument for divided success, finding the plaintiff was the successful party.

However, the court agreed to deduct certain items not appropriate for a party-and-party assessment, awarding the plaintiff $905,244.02 in costs.

Following a summary judgment in a class action regarding prepaid payment cards, the court determined the appropriate prejudgment and postjudgment interest to be awarded to the plaintiff class.

The court deferred the determination of a distribution protocol pending the resolution of the defendants' appeal and the plaintiff's cross-appeal.

The court awarded $1,233,753 in prejudgment interest and ordered postjudgment interest at a rate of 3.0% per annum on the total award of $18,063,753.

The representative plaintiff brought a class action against the defendants for charging illegal fees and imposing expiry dates on prepaid payment cards, alleging violations of the Consumer Protection Act, 2002 and O. Reg. 17/05.

The court found that the defendants' Single Load Prepaid (SLP) cards were 'open loop gift cards' subject to the legislation, while their General Purpose Reloadable (GPR) cards were exempt as financial products.

The court granted summary judgment for the SLP cardholders, awarding $15,330,000 in aggregate damages for unlawful fees and seized balances, plus $1,500,000 in punitive damages for the defendants' intentional disregard of consumer protection laws.

The Canadian respondents brought a motion to set aside an ex parte Mareva injunction that froze their assets worldwide.

They argued the injunction should be set aside due to material non-disclosure by the applicants and insufficient evidence of their involvement in the alleged $71.7 million fraud or risk of dissipation.

The court dismissed the motion to set aside, finding no material non-disclosure and sufficient evidence of knowing receipt of misappropriated funds and risk of dissipation.

However, the court varied the order to release funds for the respondents' living and legal expenses.

The court also granted a sealing order over the transcripts of the respondents' compelled examinations to protect their rights against self-incrimination in light of a criminal investigation in Iran.

The respondents' request for security for the applicants' undertaking as to damages was denied.

Homeowners retained a septic system installer to install a system in 2010, which was approved by the health unit.

Problems with smell and effluent began in 2011 and persisted through 2013.

The installer repeatedly assured the homeowners he could fix the problem and made several attempts to do so.

In 2015, the health unit condemned the system and issued a compliance order.

The homeowners sued in August 2015.

The trial judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the claim was discovered by spring 2013.

The Divisional Court upheld this decision.

The Court of Appeal reversed, finding the trial judge failed to properly analyze section 5(1)(a)(iv) of the Limitations Act regarding when a proceeding would be an appropriate remedy.

The court held that the homeowners reasonably relied on the installer's superior knowledge and expertise, and a proceeding was not appropriate until the installer's remedial efforts ceased in winter 2014.

The action was therefore within the two-year limitation period.

The Ontario Superior Court of Justice approved a class action settlement, honoraria for representative plaintiffs, and class counsel's legal fees after eight years of litigation, including trials and appeals.

The class action arose from misrepresentations by George Brown College regarding industry designations for its International Business Management Program.

The settlement provides $2.725 million to 108 class members, covering direct costs and a portion of foregone income, and was deemed fair, reasonable, and in the best interests of the class.