Jonathan Lisus

The appellants, a real estate developer and related corporate entities, appealed a judgment granting the respondent lender $12.9 million plus interest on a defaulted commercial loan.

The appellants argued the application judge erred by failing to convert the application to an action, by conducting a credibility analysis on a paper record, and by foreclosing a defence of equitable set-off and counterclaim.

The Court of Appeal found the application judge's reasons were clear and sufficient, the documentary record amply supported the finding that no binding second amending agreement was ever reached, and credibility assessments were not necessary given the strength of the documentary evidence.

The court declined to resolve whether the enhanced fact-finding powers available under r. 20 apply to applications under r. 14, leaving that question for another day.

The appeal was dismissed and full indemnity costs of $55,000 were awarded to the respondent pursuant to the contractual costs clause in the loan agreement.

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 respondents were successful in resisting appeals by the Varma/Madra Appellants and the Palihapitiya Appellants, and succeeded on their cross-appeal.

They sought costs on a substantial indemnity basis.

The Court of Appeal found no justification for a higher scale and awarded partial indemnity costs fixed at $300,000, payable equally by the two groups of appellants.

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 appellant, a police officer, was criminally charged following an SIU investigation into a training exercise explosion.

After the charges were stayed, he sued his fellow officers and the police board for malicious prosecution and misfeasance in public office, alleging they intentionally misled the SIU.

The motion judge dismissed the claim, finding it was a workplace dispute governed exclusively by the collective agreement and the Police Services Act.

The Court of Appeal allowed the appeal, holding that the essential character of the claim involved an independent criminal investigation outside the workplace, and therefore the court's jurisdiction was not ousted.

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 appellant landlords appealed a decision declaring that their consent was not required for the respondent tenants to assign and sublease commercial leases as part of a joint venture.

The tenants proposed assigning the leases to a limited partnership whose general partner was the existing tenant.

The Court of Appeal upheld the application judge's finding that a limited partnership can only hold property through its general partner.

Since the leases were being assigned to the general partner, which was the existing tenant, the assignment fell within the leases' affiliate exception and did not require the landlords' consent.

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.

On motions to strike in a franchise dispute arising from the post-bankruptcy restructuring of an automotive manufacturer, the court dismissed the entire claim against the U.S. parent entities and struck discrete allegations against the Canadian franchisor.

The court held that a franchisor’s associate is not liable under s. 3 of the Arthur Wishart Act unless it is also a party to the relevant franchise agreement, and further found the pleadings did not satisfy the statutory definition of franchisor’s associate.

The court also held that the pleadings did not justify piercing the corporate veil to impose contractual liability on the parent companies.

Allegations concerning misuse of government bailout funds and the defendants’ preference of their own interests were struck as irrelevant, scandalous, and abusive.

Leave to amend was refused.

The defendant moved under Rules 21.01(1)(a) and 51.06 for a declaration that the plaintiffs had irrevocably elected to affirm a settlement agreement and therefore could not pursue rescission in the alternative.

In a complex commercial dispute arising from the termination of margin facilities and liquidation of hedge fund assets during the 2009 financial crisis, the court held that the factual matrix, discovery record, and alleged misrepresentations were too complicated to resolve on a paper record on the eve of trial.

The court was not satisfied that the pleadings or discovery admissions established the necessary elements of election, nor that a forced election between inconsistent remedies should be imposed at that stage.

The motion was dismissed, leave to amend was granted, and costs of $100,000 inclusive were awarded to the plaintiffs.

The defendant public authority moved for summary judgment dismissing a long-running action on the basis that the claims were barred by the six-month limitation period in s. 7(1) of the Public Authorities Protection Act.

Applying the summary judgment framework from Hryniak and the public/private power analysis from Des Champs, the court held the record did not permit a confident determination that the impugned conduct correlated sufficiently with the exercise of a public duty or authority.

The evidentiary record suggested the defendant was acting both as regulator and as a commercial actor dealing with potential lessors of Crown near-shore oil rights.

Summary judgment was refused, a mini-trial was declined, and the action was directed to proceed to trial expeditiously.

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.