Jonathan C. Lisus

This costs endorsement from the Ontario Court of Appeal addresses the disposition of costs following a partial appeal.

The court had previously allowed the appeal in part, setting aside a motion judge's costs award against the appellants and remitting a narrow issue for trial.

The parties could not agree on costs for their respective summary judgment motions.

The court ordered that the costs on the summary judgment motions and the action to-date be reserved to the trial judge, as the trial judge would be best placed to assess these costs in the context of the final disposition of the action.

The court also clarified that the motion judge's original costs order remained against one corporate defendant.

The Respondent sought a pre-trial ruling to preclude the Applicant from raising issues related to the ownership, control, or valuation of certain companies (FCMC Companies) at trial.

The Respondent argued irrelevance, abuse of process due to a parallel civil action, issue estoppel from a prior disclosure motion, lack of necessary parties, and insufficient pleadings.

The court dismissed the Respondent's motion, finding the Applicant's claims relevant to net family property and support, no abuse of process as the legal issues differed from the civil action, no issue estoppel as the prior ruling was on disclosure, and no preclusion due to non-joinder of parties or insufficient pleadings, as the Respondent had clear notice of the issues.

The Court of Appeal for Ontario dismissed an appeal from a judgment of the Superior Court of Justice, substantially agreeing with the reasons provided by the lower court judge.

Costs were awarded to the respondent.

The Royal Bank of Canada sought to recover over $3 million from individual defendants under personal guarantees for a family company's loans.

The defendants appealed a summary judgment, arguing that their liability was joint and several and limited to a global amount based on bank employee misrepresentations.

The Court of Appeal allowed the appeal, finding the motion judge erred by not adequately explaining the rejection of the defendants' unchallenged evidence regarding misrepresentation and by misapplying the entire agreement clause.

A trial was ordered to determine the scope of liability under the guarantees.

Parc-IX Limited applied to set aside an arbitral award, arguing the arbitrator exceeded jurisdiction by failing to consider legal regulations (Rental Replacement Unit policy) affecting property valuation under a ground lease.

Manufacturers Life Insurance Company cross-applied to enforce the award.

The court dismissed Parc-IX's application, finding the arbitrator did consider the regulations but determined they did not apply on the facts, acting within jurisdiction.

The application to set aside the costs award was also dismissed, affirming that costs are determined on the facts of each case.

The landlord applicant sought declaratory relief regarding its ability to lease former Sears space in an Ottawa shopping mall to a bank for a call centre.

The respondent, Hudson’s Bay Company (HBC), argued its consent was required under the lease due to a material change to the mall's merchandising plan.

The court found that the proposed lease constituted a "major change to the merchandising balance of the mall," would "materially change pedestrian flow," and would "detrimentally affect the Tenant’s merchandising environment," thereby triggering HBC's consent requirement.

The court further determined that HBC had not waived its rights, had not unreasonably withheld consent, and had not acted in bad faith.

The application was dismissed with costs awarded to the respondent.

The plaintiffs sought leave to amend their statement of claim to significantly increase the damages claimed (from $60 million to $662 million) and to elaborate on the theoretical basis for these damages, including through the application of unjust enrichment.

This motion followed a prior summary judgment that established Ontario's liability for breach of contract, with damages to be assessed.

The defendant, Ontario, opposed the amendments, arguing they were barred by res judicata (issue and cause of action estoppel), abuse of process, and constituted a collateral attack, particularly concerning the unjust enrichment claim which was subject to a pending appeal.

The court granted leave for most amendments, finding no non-compensable prejudice.

It clarified that while the unjust enrichment claim as a cause of action was under appeal and could not be bolstered, the amendments could be used to plead theories of damages for the existing contract claim.

An appeal from a motor vehicle accident trial in which the appellant, driving while impaired, collided with the respondents' vehicle, causing the death of a young child and serious injuries to family members.

Liability was admitted.

The appellant raised five grounds of appeal challenging the trial judge's determination of threshold issues under the Insurance Act, the admissibility of expert evidence, awards for loss of care, guidance and companionship, and the costs award.

The Court of Appeal dismissed all grounds of appeal, finding no bias, no error in the admission of expert evidence from a psychologist, no excessive damages awards, and no error in principle in the costs determination.

The plaintiff, Canada Bread, sued the defendants (First Gulf and Mallot Creek) for negligence and breach of contract related to a bakery's design and construction.

An initial action was settled, and a release was executed for "known" claims.

Before the release, a fire occurred at the bakery.

Canada Bread's insurer was aware of First Gulf's potential liability for the fire, but Canada Bread itself was not.

Canada Bread subsequently commenced a second action for fire-related damages.

First Gulf brought a summary judgment motion before an arbitrator, arguing the release barred the second action.

The arbitrator dismissed the motion, finding the release only covered "known" claims and that Canada Bread was unaware of First Gulf's fire-related liability at the time of the release.

First Gulf appealed this decision to the Superior Court.

The Superior Court granted leave to appeal on questions of law but ultimately dismissed the appeal, upholding the arbitrator's decision as reasonable.

The plaintiffs, Paramount Fine Foods and Mohamad Fakih, brought a motion for summary judgment against Kevin J. Johnston and FreedomReport.ca for defamatory publications.

The defendants failed to file responding materials, resulting in no material facts in issue.

The court found the defendants defamed the plaintiffs, awarding $2.5 million in general, aggravated, punitive, and special damages, and granted permanent injunctions to prevent further defamation and harassment.

Her Majesty the Queen in right of Ontario sought to lift a stay on its $330 billion health care cost recovery action against three tobacco companies (JTI-Macdonald Corp., Imperial Tobacco, Rothmans, Benson & Hedges Inc.) and eleven co-defendants, which was imposed under CCAA proceedings.

Ontario proposed to temporarily stay the effects of any judgment.

The court dismissed the motion, emphasizing the need to preserve the status quo in CCAA proceedings to facilitate a global resolution of significant claims.

Allowing Ontario's action to proceed would alter the level playing field, distract from restructuring efforts, and impose significant costs, prejudicing other stakeholders.

The Attorney General of Canada sought a second extension of the suspension of a declaration of invalidity regarding sections 31-37 of the Corrections and Conditional Release Act.

The application judge had found these provisions infringed section 7 of the Canadian Charter of Rights and Freedoms due to the absence of meaningful independent review within five working days of administrative segregation placement.

The court granted a conditional extension to June 17, 2019, requiring implementation of an independent fifth-day review of administrative segregation decisions, rather than the unconditional extension to November 30, 2019 that the Crown sought.

An online retailer of prescription eyewear based in British Columbia appealed an application judge's decision that found it was in breach of Ontario's Regulated Health Professions Act by dispensing prescription eyewear to Ontario customers without involving Ontario-licensed health care providers.

The Court of Appeal allowed the appeal, finding that the application judge erred in determining that sufficient constitutional connection existed between the respondent's online sales and Ontario's regulatory scheme.

The court held that while delivery of prescription eyewear falls within the continuum of dispensing activities, the mere delivery of product ordered online and processed in compliance with British Columbia's regulatory regime does not establish sufficient connection to apply Ontario's controlled act provisions to an out-of-province supplier.

The court emphasized that the discrete act of delivery has primarily a commercial aspect rather than a health care one, and that applying Ontario's legislation would effectively grant a monopoly over the importation of prescription eyewear into Ontario.

The Canadian Civil Liberties Association challenged the constitutionality of sections 31-37 of the Corrections and Conditional Release Act, which authorize administrative segregation (solitary confinement) in federal penitentiaries.

The applicant sought declarations that these provisions violate sections 7, 11(h), and 12 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal found that prolonged administrative segregation (more than 15 consecutive days) violates section 12 of the Charter as cruel and unusual treatment and cannot be justified under section 1.

The court rejected arguments regarding inmates aged 18-21 and those with mental illness due to insufficient evidence, and dismissed the section 11(h) claim.

The court declared sections 31-37 of no force and effect to the extent they authorize prolonged administrative segregation.

The Court of Appeal for Ontario considered a motion by the Attorney General of Canada to extend the suspension of a declaration of constitutional invalidity regarding sections 31-37 of the Corrections and Conditional Release Act.

The lower court had found that the "fifth working day review" for administrative segregation violated section 7 of the Canadian Charter of Rights and Freedoms due to the lack of meaningful independent review.

The respondent sought an extension to allow Parliament to enact Bill C-83, which would replace administrative segregation with "structured intervention units." The court granted the extension to April 30, 2019, finding that immediate effect would pose unacceptable danger to correctional personnel and inmates, despite expressing concern about Canada's delay in addressing the constitutional infirmity and the absence of interim measures or adequate explanation of how the proposed legislation would remedy the breach.

A power producer sought judicial intervention to force renegotiation of a long-term fixed-price electricity contract after market changes generated large resale profits for the purchaser.

The Court held Quebec civil law did not provide a basis to imply a duty to renegotiate, to apply unforeseeability in these circumstances, or to redistribute contractual benefits through good faith or equity.

The agreement allocated price fluctuation risk and remained enforceable as written.

The appeal was dismissed, with a dissent that would have recognized a relational-contract duty to cooperate.

The defendants, BNT Canada, L.P., BNT Canada GP, Inc., and Bechtel Power Corporation (collectively "Bechtel"), brought a motion to transfer the action from Walkerton (Central West Region) to the Toronto Region under Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs, Bruce Power L.P. and Bruce Power Inc. (collectively "Bruce Power"), opposed the motion.

The court applied a holistic approach to the factors enumerated in Rule 13.1.02(2)(b), finding that the convenience of the parties, witnesses, and the court, along with advantages for securing a just, expeditious, and least expensive determination, and the availability of judges and court facilities, favored Toronto.

The court concluded that Bechtel had met the onus of demonstrating that Toronto was "significantly better" and that the transfer was in the interest of justice.

The motion to transfer the action to Toronto was granted.

This is the third appeal in a class action arising from the acquisition of London Life by Great-West Life.

The class alleged that participating policy account (PAR) transactions violated the Insurance Companies Act.

The trial judge found breaches and awarded class counsel fees of $16.4 million with a first charge over the $56.43 million returned to PAR accounts, awarded $4 million in partial indemnity costs to the class, and imposed a levy in favour of the Law Foundation of Ontario.

The appellants challenged the class counsel fees, costs award, and levy.

The majority upheld all trial judge decisions, while the dissent argued that no monetary award was made to the class and therefore no charge could attach to the PAR accounts.

Appeal from a Superior Court judgment finding the indemnifier liable under an indemnity agreement for unpaid rent and related losses.

The indemnifier challenged the finding of liability based on alleged pre-contractual misrepresentations by the landlord regarding park improvements.

The court upheld the finding of liability, rejecting the misrepresentation defence.

On the quantum issue, the court dismissed the indemnifier's appeal regarding restoration costs and legal fees, but allowed the landlord's cross-appeal to extend liability for future rent through the end of the lease term, subject to mitigation credits.

The plaintiffs, a Muslim-Canadian businessman and his restaurant chain, sued the defendants for defamation after the defendants posted videos containing hateful comments about Muslims and the restaurant.

One of the defendants brought a motion to dismiss the action under the anti-SLAPP provisions of section 137.1 of the Courts of Justice Act, and alternatively under Rule 21.01(3)(d) as an abuse of process.

The court dismissed the motion, finding that the defendant's expression was not related to a matter of public interest, but rather constituted hallmarks of hate directed at the plaintiffs.

The court also found the pleadings set out a valid prima facie case of defamation.