Jonathan Roth

The moving parties brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000 all inclusive.

The moving parties requested a case conference for an order staying portions of an October 16, 2024 order that required the production of documents over which solicitor-client privilege was asserted.

The court granted the stay pending the resolution of the motion for leave to appeal and set a timetable for the delivery of motion materials.

The defendant Westreich brought a Rule 21 motion to strike the plaintiff's Statement of Claim against him, arguing it disclosed no reasonable cause of action.

The litigation involved a failed partnership for a land development project, with allegations that Westreich assisted other defendants in misappropriating the project.

The court dismissed the motion, finding that the plaintiff pleaded sufficient material facts to support claims of inducing breach of contract, knowing assistance, knowing receipt, and unlawful conduct conspiracy.

The court awarded partial indemnity costs to the plaintiff, reducing the requested amount to align with the reasonable expectations of the unsuccessful party.

The defendant, Robert Sharp, was tried for sexual assault and three breaches of release orders.

The court found him guilty of sexual assault and two breaches.

The case involved assessing the reliability of identification evidence, particularly given the complainant's impaired vision and intoxication, and the absence of consent where the complainant was asleep.

The court also addressed the admissibility of the accused's post-act utterances and the defence of honest but mistaken belief in consent.

The respondent, Rachel Bilah Medjuck, brought a motion seeking a de novo order for financial disclosure from the applicant, Akiva Medjuck, despite an interim arbitral award that had declined such disclosure.

Alternatively, she sought leave to appeal the interim arbitral award.

The court determined it lacked jurisdiction to make a de novo order for financial disclosure given the existing mediation/arbitration agreement between the parties.

The court also found that the arbitrator made no errors in law, and the questions raised for appeal were not pure questions of law, thus denying leave to appeal the interim arbitral award.

Both of the respondent's motions were dismissed.

The appellant tenant appealed an order of the Condominium Authority Tribunal holding him jointly and severally liable with his landlord to pay $18,239.60 in compensation to the condominium corporation.

The Divisional Court allowed the appeal, finding a breach of procedural fairness because the corporation had not requested this relief against the tenant and the Tribunal's procedural order did not list it as an issue.

The Tribunal's order was varied to make the landlord solely liable for the compensation.

The Justice Centre for Constitutional Freedoms (JCCF) appealed a motion judge's order requiring it to pay $156,461.99 in costs following an unsuccessful interlocutory injunction motion brought by students against Seneca College's COVID-19 vaccination policy.

The Court of Appeal found the costs order fundamentally flawed because the motion judge failed to determine if the litigation was public interest litigation and did not apply the correct legal tests for awarding costs against a non-party (the "person of straw" test or abuse of process).

The Court clarified that fundraising or promoting a case on a website does not constitute abuse of process.

The Court also stated that JCCF's refusal to disclose whether it was indemnifying the students was a relevant consideration for costs.

The appeal was allowed, the costs order set aside, and the matter remitted to the motion judge for a fresh determination.

The applicants sought to set aside two consent judgments obtained by Owens Wright LLP against its insolvent clients, Greenvilla, arguing abuse of process and fraudulent preference under the Assignments and Preferences Act.

The court found that Owens Wright obtained the judgments through abusive maneuvers, including failure to provide proper notice and ignoring a Notice of Intent to Defend from Greenvilla's receiver.

The court also found the transactions to be fraudulent preferences, citing numerous indicia of fraud and the non-arm's length relationship between Owens Wright and Greenvilla.

The judgments were declared null and void, and Owens Wright was ordered to repay the funds.

This criminal trial concerned a single count of sexual assault against B.B., based on his daughter T.B.'s recovered memory of an incident from her childhood.

T.B. experienced a "flashback" in 2018, recalling her father touching her nipples when she was around 11 years old.

The court meticulously assessed the reliability of T.B.'s recovered memory, noting the absence of independent corroborating evidence and the potential for confabulation, despite T.B.'s sincere belief in its truth.

The judge also considered B.B.'s exculpatory statements and the complex family communications surrounding the allegation.

Ultimately, the court found that the Crown did not prove B.B.'s guilt beyond a reasonable doubt, leading to an acquittal.

The defendant airline brought a motion to strike the plaintiffs' claims under Rule 21.01, arguing the claims were governed exclusively by the Montreal Convention as damages for 'delay'.

The plaintiffs had been denied boarding on an international flight because the airline mistakenly alleged one plaintiff's passport was stolen.

The court denied the airline's request to file evidentiary documents, as they were not incorporated into the statement of claim.

The court dismissed the motion to strike, finding it was not plain and obvious that the plaintiffs' claims constituted 'delay' rather than 'non-performance' of the contract of carriage, which falls outside the Montreal Convention.

The accused was charged with three counts of sexual offences against his two stepdaughters.

The allegations spanned several years and involved both touching and intercourse.

The accused testified and emphatically denied the allegations, providing a detailed and credible account of events.

Applying the W.(D.) framework, the court accepted the accused's exculpatory evidence under the first prong, finding him entirely credible.

The court also found that even if the accused's evidence was not fully accepted, it raised a reasonable doubt under the second prong, and the frailties in the Crown's evidence raised a reasonable doubt under the third prong.

The accused was acquitted on all counts.

The plaintiffs, minority shareholders of two companies that owned marinas, sought leave to bring a derivative action against the companies' solicitor regarding the distribution of proceeds from the sale of the marinas.

The plaintiffs alleged the solicitor improperly distributed the funds to the majority shareholder or companies controlled by him.

The court dismissed the motion, finding that while the plaintiffs met the first three parts of the test for a derivative action, they failed to demonstrate that the proposed action was in the best interests of the companies, as there was no evidence the companies suffered a loss and the plaintiffs' true claim was personal.

Following a decision permanently staying the plaintiffs' second action for abuse of process, the successful defendants sought costs on a substantial indemnity basis.

The court rejected the request for substantial indemnity, finding that the defendants' Rule 49 offer was not beaten and the plaintiffs' fraud claim was never adjudicated.

The court awarded costs on a partial indemnity basis, reducing the requested amounts by 25% to account for issues that were deferred to a potential future motion.

Costs were fixed at $34,608 for the main group of defendants and $13,722 for Dr. Kajdehi.

The applicants challenged the constitutionality of the federal government's mandatory hotel quarantine requirement for international air travellers arriving in Canada during the COVID-19 pandemic.

They argued the requirement violated their Charter rights and that the government failed to follow the advice of its expert advisory panel.

The court dismissed the application, finding that the government's policy choices were not arbitrary or irrational, and that the applicants failed to establish any breach of their Charter rights.

The plaintiff commenced a wrongful dismissal action in 2015 against his former employer, which was stayed when the employer declared bankruptcy.

In 2019, the plaintiff commenced a second action against the bankrupt employer and several new defendants, alleging oppression, common employer, and improper transfer of assets.

The newly added defendants moved to strike or stay the second action.

The court permanently stayed the second action as an abuse of process, finding that it improperly circumvented the comprehensive regime of the Bankruptcy and Insolvency Act for challenging asset transfers, as well as the Rules of Civil Procedure regarding the addition of parties to an existing action.

The applicants sought an interim injunction to restrain the enforcement of the federal government's mandatory hotel quarantine rules for air travellers arriving in Canada, pending a full hearing on the constitutionality of the rules.

The applicants argued the rules violated their Charter rights, including mobility and liberty rights, and caused financial hardship.

The court dismissed the motion, finding that while there was a narrow serious issue to be tried under s. 7 of the Charter, the applicants failed to demonstrate irreparable harm, and the balance of convenience overwhelmingly favoured the government's public health measures to prevent the spread of COVID-19 and its variants.

The appellant sued the respondents for unjust enrichment after providing engineering services for a power generation facility and not being paid by the contractor, N-SCI.

The motion judge struck the claim against the Starwood Defendants under Rule 21.01(1)(b), finding that the contract between the Starwood Defendants and N-SCI constituted a valid juristic reason for the enrichment, and denied leave to amend.

The Court of Appeal dismissed the appeal, holding that the motion judge properly considered only the statement of claim, correctly applied the law on juristic reasons, and reasonably exercised his discretion in denying leave to amend a speculative pleading.