Joseph Youssef Obagi

The defendant commercial tenant brought a Rule 21 motion to determine a question of law, arguing that the commercial lease agreement allocated the risk of loss from an oil spill to the plaintiff landlord, thereby barring claims in negligence and contract.

The court reviewed the lease provisions and the Supreme Court of Canada trilogy on the allocation of risk in commercial leases.

The court found no clear language in the lease absolving the tenant of liability for its own negligence, nor any evidence the tenant paid increased insurance premiums.

The motion was dismissed, with the court also declining to dismiss the motion solely on the basis of the defendant's delay in bringing it.

During a civil jury trial arising from a motor vehicle accident, the plaintiffs sought to exclude the testimony of a defence neuropsychologist regarding neuropsychological testing and symptom validity assessment.

The court applied the admissibility framework for expert evidence from R. v. Mohan and the two‑step reliability analysis from R. v. Abbey.

While the expert’s methodology raised concerns regarding cultural and linguistic validity of standardized tests and the absence of normative data for the plaintiff’s background, the court concluded the opinion met the threshold reliability for admissibility.

To preserve fairness and avoid improper commentary on credibility, the court permitted the expert to testify on testing methodology, behavioural observations, and differential diagnosis but prohibited opinions implying deceit, malingering, or general credibility.

The evidence was therefore admitted subject to strict limits and jury instructions.

The plaintiff employer sued its former president for breach of a non-competition covenant and breach of fiduciary duty after he successfully bid against the employer on a public municipal tender.

The trial judge used blue-pencil severance to cure an ambiguous and unreasonable temporal restriction in the non-competition covenant and found the employee liable.

On appeal, the Court of Appeal held that blue-pencil severance was unavailable because the severed words were not trivial and there was no evidence the parties would have unquestionably agreed to the contract without them.

The Court also found no breach of fiduciary duty, as the employee did not use confidential information or compete unfairly.

The employee's cross-appeal was allowed and the action dismissed.

The appellant appealed a Master's decision dismissing his motion to amend his statement of claim to add two third parties as defendants.

The appellant suffered a spinal injury in a swimming pool accident when he was a minor.

The court considered the transitional provisions and discoverability rules under the Limitations Act, 2002.

The court upheld the Master's finding that the appellant did not actually discover his claim against the specific third parties prior to January 1, 2004.

Furthermore, the court held that a minor without a litigation guardian cannot be deemed to have discovered a claim under s. 5(1)(b), as minors are presumed not to know their rights.

The appeal was dismissed.

The appellant appealed a summary judgment granting possession of his property to the first mortgagee and dismissing his counterclaim against the first and second mortgagees, as well as an order striking his claim against the mortgagees' lawyer.

The appellant argued that the two mortgages were intrinsically linked and the second mortgagee's failure to advance funds caused his default on the first mortgage.

The Court of Appeal dismissed the appeals, finding that the mortgages were separate, the failure to advance funds was due to the appellant's own failure to remove an execution and provide an appraisal, and the lawyer owed no duty of care to the appellant.

The appellants appealed a jury verdict dismissing their claim under the Dog Owner's Liability Act.

They argued the trial judge erred in instructing the jury on the meaning of 'attack' and in admitting hearsay evidence.

The Court of Appeal dismissed the appeal, finding that the jury instructions did not lead to error and noting the lack of objections at trial regarding both the instructions and the hearsay evidence.

The appellant was ordered to undergo a psychiatric assessment under s. 672.11 of the Criminal Code and was held in a detention centre for 15 days before a hospital bed became available.

She brought a proposed class action alleging Charter violations, breach of fiduciary duty, and negligence by the Crown for failing to immediately transfer her to a hospital.

The Court of Appeal upheld the dismissal of the action, finding that the Criminal Code permits detention in a jail pending transfer to a hospital, the detention was lawful, and the Crown owed no fiduciary duty to the appellant that would override its public interest obligations.

The appellant insurer appealed a decision finding that it owed a duty to defend the respondents.

The insurer argued that coverage was excluded under a clause for claims arising from damage to property the insured owns.

The Court of Appeal dismissed the appeal, holding that the exclusion clause was written in the present tense and did not apply to property that the respondents formerly owned but no longer owned at the time of the claim.

The respondents were awarded costs on a full indemnity scale.

The police obtained warrants to search the respondents' premises for evidence of offences under the Radiocommunication Act relating to the decoding of encrypted satellite signals.

The trial judge set aside the warrants and awarded Charter damages, finding the police acted maliciously by failing to disclose conflicting out-of-province case law in the information to obtain and by not considering alternatives to a search warrant.

The Court of Appeal allowed the appeal, holding that the police had no duty to disclose non-binding conflicting case law or to consider alternative enforcement mechanisms.

The court found no basis for setting aside the warrants or awarding damages, and dismissed the respondents' action.

The appellant appealed a decision finding that an Agreement to Lease was a valid and binding contract and that he was in breach for failing to commence tenant improvements.

The appellant argued that the respondent repudiated the agreement by insisting on a draft lease with terms significantly different from the Agreement to Lease.

The Divisional Court dismissed the appeal, finding that the appellant failed to establish that the disputed terms in the draft lease were incompatible with the financial principles of the Agreement to Lease, and therefore the agreement remained enforceable when the respondent terminated it due to the appellant's default.

The Court of Appeal issued an endorsement amending paragraph 106 of its reasons released November 26, 2009.

The amendment provides that the respondents are awarded costs of the proceeding below in the amount of $25,000 inclusive of disbursements and GST.

The appellant appealed a decision dismissing his application for an injunction to prevent the respondents from keeping a locked gate on a private road, and granting the respondents' cross-application to close the road under the Road Access Act.

The application judge found the appellant had alternate road access via a trail on Crown land using four-wheel-drive vehicles.

The Court of Appeal dismissed the appeal, holding that the application judge's finding of alternate access was supported by evidence.

The Court further held that once alternate access was established, the appellant had no standing to oppose the road-closing application.

The respondents' cross-appeal regarding a condition in the road-closing order was also dismissed.

The appellants brought an application for a stay, which was dismissed, and the appeal was stayed pending the appointment of a new trustee of the family trust.

The appointment process was subsequently resolved on consent and the appeal was abandoned.

The respondent sought costs for the stay motion.

The court awarded costs to the respondent, noting that the appellants could have achieved their desired result without bringing an unsuccessful stay application.

Costs were fixed at $15,000.

The appellant roofing company appealed a declaration that its insurer had no duty to defend an action brought by a motorcyclist who was injured when a ladder flew off the appellant's truck.

The insurer denied coverage based on an automobile exclusion in a rider to the commercial general liability policy.

The Court of Appeal dismissed the appeal, finding that the insurer was entitled to rely on the rider, which excluded coverage for bodily injury with respect to which a motor vehicle liability policy is required by law to be in effect.

The court held that loading and storing the ladder constituted the use or operation of an automobile, and the underlying claim did not allege concurrent non-automobile-related negligence.

The defendant, Ontario, sought leave to appeal a decision certifying a class action and refusing to strike the plaintiff's claim.

The plaintiff's claim alleged that detaining individuals in jail while awaiting a psychiatric hospital bed under a Criminal Code assessment order violated Charter rights and breached fiduciary duties, relying on the decision in R. v. Hussein.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the certification decision because the motion judge accepted the plaintiff's legal interpretation of Hussein as a pleaded fact, and because individual issues regarding the separate purposes of detention and assessment could overwhelm common issues.

The appellant appealed a judgment declaring that an offer to lease between the parties was no longer valid.

The offer contained conditions with specific completion dates and stipulated that time was of the essence.

The conditions were not met or extended by the specified dates.

Seven months later, the appellant attempted to unilaterally extend the time to complete the conditions.

The Court of Appeal dismissed the appeal, agreeing with the application judge that it was commercially unreasonable to interpret the offer as giving the appellant an unlimited right to extend time requirements, and held the appellant was not entitled to unilaterally extend the time.

The appellants appealed a trial judgment, arguing the trial was unfair because their counsel was discharged mid-trial, a mistrial was not declared, and the trial judge relied on the appellant's conduct in court outside the witness box to assess credibility.

The Court of Appeal dismissed the appeal, finding ample evidence to justify the removal of counsel, no error in proceeding after a two-week adjournment for the appellant to prepare to represent himself, and sufficient additional basis for the trial judge's credibility findings.

The respondents, Quebec residents, were injured in an Ontario motor vehicle accident with an uninsured driver.

They obtained a judgment in Ontario, but the respondent Katia's claim under Quebec's no-fault scheme was denied.

The Motor Vehicle Accident Claims Fund appealed an order requiring it to pay the Ontario judgment, arguing that s. 25(2) of the Motor Vehicle Accident Claims Act precluded payment because no amount was payable under Quebec law.

The Court of Appeal held that s. 25(2) only requires the foreign jurisdiction to provide substantially similar recourse and does not require a fact-specific determination of entitlement under foreign law.

The appeal was dismissed regarding Katia's claim but allowed regarding Michel's Family Law Act claim, as Quebec law provides no corresponding right.

The respondent's auto repair shop was destroyed by fire.

Despite investigations by the fire department and police concluding the fire was accidental, the appellant insurer denied the claim, alleging arson based on the flawed investigations of its independent adjuster and expert.

At trial, the jury awarded the respondent $157,000 for fire damage and $200,000 in punitive damages for the insurer's bad faith.

The insurer appealed the punitive damages award.

The Court of Appeal dismissed the appeal, finding that the insurer breached its duty of good faith by doggedly pursuing an unfounded arson defence and ignoring evidence to the contrary.

The court held that the $200,000 award was proportionate and justified to deter such reprehensible conduct.

The defendants, a church parish and a seniors' residence, sought a stay of execution of a trial judgment that handed control of the parish to the plaintiff Diocese after a failed attempt by the parish to secede.

Following the judgment, the Diocese took control and filed a notice of abandonment of the appeal.

The moving party sought to strike the abandonment and stay the judgment to use parish funds for the appeal.

The court dismissed the stay motion and allowed the notice of abandonment to stand, noting that the true protagonists (the seceding individuals) should seek intervenor status to pursue the appeal at their own expense rather than using parish funds.