Jonathan Lisus

During a complex commercial trial, an evidentiary dispute arose regarding the reading in of examination for discovery transcripts under Rule 31.11.

The defendant sought to introduce additional excerpts from its own witnesses' discoveries to qualify the plaintiffs' read-ins, and also sought to read in discovery evidence of the plaintiffs' witnesses who had already testified.

The court allowed some of the qualifying read-ins that directly explained the original answers but excluded others.

The court largely dismissed the defendant's request to read in the plaintiffs' discovery evidence, finding that doing so after the witnesses had testified without putting the evidence to them in cross-examination violated the rule in Browne v. Dunn and caused trial unfairness.

During a complex commercial trial involving the auction of wireless spectrum licences, the plaintiffs challenged the defendant's assertion of solicitor-client privilege over redacted portions of nine documents.

The defendant argued the challenge required leave under Rule 48.04 as the action had been set down for trial.

The court held that a trial judge has broad discretion to order production of non-privileged documents at any time under Rule 30.04(5) without leave, but would have granted leave in the interests of justice regardless.

After inspecting the unredacted documents, the court found that while some redactions properly protected legal advice, others merely reflected policy discussions or operational decisions that referenced legal risks, which do not attract privilege.

The defendant was ordered to produce the improperly redacted portions.

The plaintiff, a person under disability following a severe motor vehicle accident, sought court approval of a $487,500 tort settlement and associated legal fees under Rule 7.08.

The court approved the settlement amount, noting it was on the low end of reasonable but acceptable given the outstanding accident benefits claim.

However, the court rejected the proposed legal fees based on a 30% contingency agreement, finding them unreasonable given the lack of liability risk and early settlement.

The court reduced the fees to slightly above docketed time and ordered a portion of the funds to be structured with a case manager appointed to oversee the plaintiff's treatment plan.

The decision also provides a comprehensive checklist for counsel filing Rule 7.08 applications.

The plaintiff commenced defamation actions against the defendants regarding online broadcasts and internet postings.

A summary judgment motion was scheduled for September 21, 2021.

On September 10, 2021, the defendant retained new counsel, who requested a brief adjournment to prepare a new factum and provide proper representation.

The court denied the adjournment request, finding that the defendant provided no explanation for the late retention of counsel, the plaintiff would be prejudiced by further delay as the alleged defamatory postings remained online, and the administration of justice would not be served by a last-minute adjournment.

The plaintiffs sought to schedule an urgent motion for an interlocutory injunction to compel the closure of schools to in-person learning in York Region due to COVID-19, prior to commencing a formal proceeding.

Several unions and school boards sought to intervene.

The court scheduled the injunction motion conditionally, requiring the plaintiffs to formally commence an action or application first.

The court declined to schedule the intervention motions on an urgent basis, finding it would be unfair to the responding parties given the tight timeline.

The applicant landlord sought an urgent hearing prior to the expiry of a conditional period in a new lease to determine if the respondent tenant had a consent right over the proposed change of use to a call centre.

The respondent sought an adjournment because its lead counsel was unavailable on the scheduled date and opposed a weekend hearing due to the impact on junior staff and preparation time.

The court granted the adjournment, noting the lack of objective urgency, the landlord's voluntary assumption of the deadline, and the importance of health and wellness for legal practitioners during the pandemic.

The defendants brought an anti-SLAPP motion to dismiss a libel action commenced by the plaintiffs, a law firm and its senior partner.

The action arose after the individual defendant protested outside the plaintiffs' offices with placards alleging the law firm was withholding funds owed to the corporate defendant for occupational therapy services.

The court dismissed the motion, finding the expression did not relate to a matter of public interest, but rather a private financial dispute between two professional firms.

The court awarded costs to the plaintiffs, finding compelling facts to depart from the statutory presumption of no costs for an unsuccessful moving party.

The appellants appealed an arbitration decision that dismissed their claim for rectification of a unanimous shareholders' agreement.

The appellants argued that the right of first offer clause contained a mutual mistake by allowing a partial take-up of shares, and sought to rectify it to require an all-or-nothing purchase.

The arbitrator found no prior common intention to support rectification.

On appeal, the court held that the issues raised by the appellants were questions of fact or mixed fact and law, not extricable questions of law.

The appeal was dismissed with costs awarded to the respondents.

The applicant, an Indigenous person, sought an urgent interim and interlocutory injunction to restrain the broadcast and display of the Cleveland Indians' team name and 'Chief Wahoo' logo during the American League Championship Series in Toronto, pending human rights complaints.

The court found there was a serious issue to be tried regarding whether the name and logo constituted discrimination in the provision of a service.

However, the court dismissed the application because the applicant failed to establish irreparable harm, noting the delay in bringing the application, and found the balance of convenience favoured the respondents due to the material prejudice of last-minute broadcast and uniform changes.

Following the dismissal of a motion to remove the respondent's counsel in a family law proceeding, the respondent sought costs of $88,729.26 on a substantial indemnity basis.

The moving parties argued the quantum was unreasonable and sought to have costs fixed at $30,000 payable in the cause.

The court found the respondent's counsel's hours and rates to be somewhat excessive compared to the moving parties' counsel, but acknowledged the importance of the motion.

The court fixed costs at $50,000, payable forthwith, rejecting the moving parties' argument that payment should be deferred until the equalization payment was determined.

The plaintiffs brought an urgent motion for the return of confidential information held by their former employee, the defendant, on her personal computer.

The defendant had been terminated and was sued for allegedly stealing over $400,000, while she counterclaimed for wrongful termination.

The parties agreed to have an independent IT expert copy and delete the confidential information, but disputed whether the expert should image the entire hard drive for preservation and whether the defendant should swear an affirmation confirming all confidential documents were produced.

The court ordered that the hard drive be imaged and preserved by an independent third party to prevent future disputes, and required the defendant to provide a sworn confirmation.

The parties separated in 1999 after a 17-year marriage.

Following the wife's death in 2011, her estate obtained a summary judgment order declaring that all property owned by either party at separation was co-owned equally and held in trust.

At trial to determine the equalization payment, the court rejected both experts' extreme interpretations of the summary judgment order.

The court found the order did not impose retroactive trust obligations that would penalize post-separation consumption or require compounding interest.

The court also determined that substantial bonuses paid to the husband by his company post-separation were remuneration for his active management services, not shareholder distributions, and thus were not subject to equal division.

After valuing the respective assets, the court ordered the husband to pay the estate an equalization payment of $7,932,647.50.

Following a four‑week civil trial involving wrongful dismissal, oppression claims, and counterclaims for breach of fiduciary duty and misuse of confidential information, the court determined costs.

The plaintiff’s claim for damages exceeding $1 million was dismissed, although he succeeded in establishing that he had been terminated rather than having resigned.

The defendants’ $2 million counterclaim was largely unsuccessful except for minor reimbursement of approximately $300 in expenses.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court found success divided but concluded the defendants were the more successful parties overall.

Partial indemnity costs were awarded to the defendants, reduced to reflect divided success, unnecessary litigation steps, and excessive defence costs.

Following a successful family law motion granting injunctive relief to prevent dissipation of assets, the moving party sought costs on a full recovery basis.

The court considered Rule 24 of the Family Law Rules and determined that the responding party had acted in bad faith by failing to provide proper financial disclosure, terminating support, and attempting to deal with jointly owned assets while international proceedings were ongoing.

Given the complexity of the litigation, the high financial stakes, and the conduct of the responding party, the court held that full indemnity costs were warranted.

The court ordered payment of substantial legal fees and disbursements to counsel for the moving party within 30 days.

The plaintiff, former President of a private trust company, sued for wrongful dismissal and oppression after his employment ended amidst allegations of working for another company and improperly claiming expenses.

The court found that the plaintiff was terminated, not that he resigned.

However, the termination was justified for cause because the plaintiff breached his fiduciary duties by misrepresenting his role with another company and engaging in a pattern of claiming expenses from his employer while also deducting them on his income tax returns.

The oppression claim and the employer's counterclaim for misuse of confidential information were dismissed, though the employer was awarded reimbursement for specific improperly claimed expenses.

Following dismissal of a motion by the Crown to strike a negligence and negligent misrepresentation claim arising from a government procurement process for school bus services, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs while the Crown argued for a lower partial indemnity award.

Applying Rule 57 of the Rules of Civil Procedure and the fairness principles from Boucher, the court held that the motion, although unsuccessful, was not wholly devoid of merit and therefore did not justify substantial indemnity costs.

The court also rejected the Crown’s submission that HST should not be included in a costs award against it.

Partial indemnity costs of $39,897 inclusive of disbursements and HST were awarded to the plaintiffs.

Following a successful motion, the defendants sought costs on a partial indemnity basis.

The plaintiff objected to several items in the defendants’ costs outline, including recovery of costs for cross-examining the plaintiff’s affiant, the attendance of two defence lawyers at a cross-examination in London, and recovery of business class airfare.

The court held that the cross-examination was reasonable and materially relied upon in the reasons for judgment, and that it was reasonable for two lawyers to attend given the complexity and stakes of the litigation involving a foreign government.

However, applying principles of proportionality and fairness in costs awards, the court found that business class airfare should not be imposed on the opposing party and reduced the disbursement to the equivalent of economy travel.

Costs were awarded accordingly.

The plaintiff, Bombardier Inc., sued the Republic of Estonia and its state-owned airline, Estonian Air, alleging tortious interference in an aircraft purchase agreement.

The Republic brought a motion to stay the action against it, claiming state immunity under the State Immunity Act.

The court found that the Republic's waiver of immunity in a shareholders' agreement did not extend to the plaintiff, a non-party.

Furthermore, the commercial activity exception did not apply, as the Republic's role as a shareholder was not inherently commercial in the context of the transaction, and there was no evidence of the state unlawfully interfering with the purchase.

The motion was granted and the action against the Republic was permanently stayed.

The plaintiffs sought partial summary judgment declaring that no binding contract existed for a nationwide roll‑out of a stored value “Tim Card” payment system and that they had not misused confidential information obtained during a pilot program.

The defendants alleged that a binding agreement had been reached or, alternatively, that the plaintiffs breached confidentiality obligations and a duty to negotiate in good faith after abandoning negotiations and conducting an RFP process.

The court held that the evidence showed only an agreement in principle and ongoing negotiations, not a finalized contract, as material terms remained unresolved and the parties’ conduct did not demonstrate a binding commitment.

The court also found no misuse of confidential information, concluding that the operational data from the pilot project belonged to the restaurant chain and did not constitute protectable confidential information of the technology vendor.

However, genuine issues remained regarding whether the plaintiffs breached a contractual obligation to negotiate in good faith.