Ellen M. MacDonald

The Director of the Ontario Racing Commission sought judicial review of a Panel decision that exonerated a horse trainer from an absolute liability offence based on a due diligence defence.

The horse had tested positive for a prohibited drug after winning a race.

The Divisional Court held that the Panel's decision was unreasonable because a standard of care defence is not available for an absolute liability offence.

The Court set aside the Panel's decision, restored the original finding of a rule violation, and exercised its jurisdiction to impose a penalty of no fine and no suspension, leaving the horse's disqualification intact.

The plaintiff was injured in a motor vehicle accident and claimed both statutory accident benefits and tort damages.

The insurer, which insured both the plaintiff and the defendant, denied coverage alleging a staged accident.

The insurer retained the same law firm to defend it in the accident benefits arbitration and to defend the tort action, providing the law firm with the plaintiff's confidential accident benefits file without consent.

The plaintiff successfully moved to remove the law firm as solicitor of record due to a conflict of interest.

The insurer appealed to the Divisional Court.

The Divisional Court dismissed the appeal, holding that an insurer owes a duty of good faith and must maintain a privacy 'firewall' between its accident benefits and tort departments.

Retaining the same counsel and sharing confidential information without consent created an irreconcilable conflict of interest.

Following the dismissal of the defendants’ motion and the granting of certain relief to the plaintiff, the court addressed the issue of costs.

The plaintiff sought costs on a substantial indemnity basis for legal fees and disbursements incurred on the motion.

The court deducted time attributable to related Court of Appeal proceedings but otherwise accepted the majority of the hours claimed.

The court awarded substantial indemnity costs, finding the total amount proportionate to the significant sums at stake in the litigation.

A request by defence counsel for an additional ruling concerning mortgage accounts was refused as the issue had not been before the court on the motion.

The defendants brought a motion under Rule 21.01(1)(a) of the Rules of Civil Procedure seeking dismissal of a medical negligence action arising from the death of a patient in hospital.

The plaintiffs commenced the action more than two years after the deceased’s death and argued that discoverability and fraudulent concealment should extend the limitation period because the alleged negligence was not discovered immediately.

The court held that s. 38(3) of the Trustee Act imposes a strict two‑year limitation period running from the date of death with no discoverability exception.

As the action was commenced outside that period, the estate’s claim was statute‑barred.

The derivative claims under the Family Law Act were also barred.

The contractor appealed a decision of a master following a two‑day trial concerning a residential renovation contract and a construction lien dispute.

The master had denied the contractor any fee or profit and ordered the homeowners to reimburse only half of the contractor’s expenditures after finding a breach of a purported “timely reporting” obligation.

The contractor argued the master misinterpreted the contract by imposing obligations not contained in its plain language.

The court held that the master appeared to disregard the contract’s terms and erred in denying fees and profit on that basis.

The appeal was allowed and the contractor, as the successful party on appeal, was entitled to costs on a partial indemnity basis.

The defendants brought a motion seeking to enforce the plaintiff’s undertaking as to damages given in support of an ex parte Mareva injunction that froze their assets for nine days.

They argued that the injunction caused them to lose a commercial transaction and sought an inquiry to determine damages.

The court considered jurisprudence emphasizing the strong presumption that a party giving an undertaking as to damages should ordinarily be held to it unless special circumstances exist.

The court concluded that special circumstances were present, including the defendants’ conduct in the underlying litigation and the absence of persuasive evidence that the injunction caused compensable losses.

The motion to enforce the undertaking and order an inquiry into damages was dismissed.

The plaintiff brought a motion for summary judgment to enforce a joint and several continuing guarantee securing demand promissory notes.

The defendant argued the claim was statute‑barred under the Limitations Act, 2002 and that liability should be limited to half the indebtedness because there were two guarantors.

The court held that the limitation period for enforcing a continuing guarantee begins only after a clear and formal demand on the guarantor, which occurred in 2010, making the action timely.

The court further held that a joint and several guarantee permits recovery of the entire indebtedness from any guarantor.

Summary judgment was granted for the full amount of the debt with interest and costs.

Following earlier reasons on an application concerning rights under the Residential Tenancies Act, 2006, the court determined the issue of costs.

The applicant argued that the respondent’s claimed costs were excessive due to court waiting time and time spent preparing brief cost submissions.

The court agreed the matter did not warrant substantial indemnity costs and instead assessed costs on a partial indemnity basis.

After reviewing both parties’ submissions and the bill of costs, the court fixed costs at a reduced amount payable to the respondent’s solicitors.

The defendants brought a motion seeking to stay an Ontario action alleging negligence in the provision of legal services relating to litigation in North Carolina.

The plaintiff argued that Ontario had jurisdiction because it was present in Ontario and allegedly sustained damages there.

Applying the real and substantial connection test articulated in Club Resorts Ltd. v. Van Breda, the court found that none of the presumptive connecting factors linked the dispute to Ontario.

The alleged negligence occurred in North Carolina, the defendants were based there, and the relevant contract and witnesses were located in the United States.

The court concluded that Ontario lacked jurisdiction simpliciter and that, in any event, North Carolina was the clearly more appropriate forum.

The appellant insurer appealed an interlocutory order adding it as a Statutory Third Party rather than as an intervenor under Rule 13.01 in an action arising from an allegedly staged motor vehicle accident.

The insurer argued that as a Statutory Third Party, it could not take a position contrary to its insured, preventing it from fully contesting liability based on fraud.

The Superior Court allowed the appeal, finding that the insurer should be added as a party Defendant to avoid a multiplicity of proceedings and to allow it to properly defend against the alleged fraud.

The plaintiffs sought partial indemnity costs following successful motions relating to enforcement proceedings against foreign state defendants.

The motions required complex investigation into assets in Canada and consideration of amendments to the State Immunity Act concerning state support for terrorism.

The court found no reason to depart from the general rule that costs follow the event and accepted that the plaintiffs’ counsel undertook significant investigative and expert consultation work.

The defendants’ conduct, including concealing assets to avoid claims, supported an award of costs.

The court ordered partial indemnity costs, inclusive of taxes and disbursements, payable jointly and severally by the defendants.

The respondent was seriously injured in a motor vehicle accident in the United States Virgin Islands.

She applied to her insurer for statutory accident benefits and underinsurance coverage.

The insurer brought an application to deny coverage, arguing the accident occurred outside the territorial limits of the Insurance Act and the policy, which cover the 'United States of America'.

The court found the term ambiguous and applied the doctrine of contra proferentem, concluding that the term includes the United States Virgin Islands for the purposes of coverage.

The insurer's application was dismissed.

The plaintiff, Canadian Pacific Railway Company, sought to convert an interim injunction into a permanent injunction to restrain the defendant truck drivers from picketing and blockading its Vaughan Intermodal Terminal.

The defendants, who were independent contractors for trucking companies serving CPR, had been protesting pay cuts.

Following reports of vandalism and safety concerns, the court found that the plaintiff met the test for an injunction and ordered that the existing interlocutory injunction be made permanent pending trial.

The applicant sought an order referring a solicitor’s accounts to an Assessment Officer under the Solicitors Act after the final account had been paid and more than twelve months had elapsed since delivery.

The court considered ss. 4(1) and 11 of the Solicitors Act, which require proof of “special circumstances” where an assessment is sought after the limitation period or after payment of the bill.

The applicant provided no evidence demonstrating special circumstances, excessive billing, or dissatisfaction with the accounts at the time they were rendered and paid.

The court also found that the passage of time and potential prejudice to the law firm weighed against ordering an assessment.

The application was dismissed.

A tenant brought an application seeking a declaration that the Landlord and Tenant Board lacked jurisdiction to hear a landlord’s arrears of rent application because the tenant had vacated the unit before the hearing and because the named landlord was allegedly not a legal entity.

The court considered the interpretation of s. 87(1) of the Residential Tenancies Act, 2006 and the scope of the Board’s authority.

The court held that jurisdiction is established if the tenant was in possession of the rental unit when the landlord’s application was filed.

Issues relating to jurisdiction or the identity of the landlord should be raised before the Board itself.

The application was dismissed as the proper forum to determine the issues was the Landlord and Tenant Board.

The plaintiff mortgagee brought proceedings arising from a default under a mortgage registered against a commercial property.

The mortgage secured a principal amount of $1.2 million and had matured without any payments being made.

The defendant mortgagor and related parties challenged enforcement steps following the issuance of a notice of sale under the Mortgages Act.

The court found there was no viable defence to the enforcement proceedings and granted possession and ancillary relief, including orders directing tenants and government agencies to pay rents directly to the mortgagee.

The plaintiff franchisor brought a motion for default judgment against former franchisees for defamation.

Following the termination of their franchise agreements, the defendants engaged in a widespread campaign of making false and defamatory statements about the plaintiff to suppliers, landlords, competitors, and the media.

The defendants failed to defend the action and were noted in default.

The court granted default judgment, finding the statements were defamatory and made with malice.

The court awarded $425,000 in general damages, $75,000 in punitive damages, and granted a permanent injunction restraining the defendants from publishing further defamatory statements.

Application concerning entitlement to proceeds of a life insurance policy where the insured had first designated a sibling as revocable beneficiary and later designated a spouse and child in a will.

The will was subsequently revoked by operation of law upon the insured’s later marriage.

The court held that the beneficiary designation contained in the will constituted a “declaration” under the Insurance Act that revoked the earlier designation.

When the will was later revoked by marriage, the revocation did not revive the earlier beneficiary designation, leaving no valid beneficiary designation in effect.

Accordingly, the proceeds of the life insurance policy were payable to the estate.

A solicitor brought a motion under the Solicitor’s Act to oppose confirmation of a hearing officer’s report assessing the solicitor’s account at $0 after the solicitor failed to attend the assessment hearing.

The solicitor explained that the absence resulted from mistakenly entering the wrong hearing date in her calendar and provided affidavit evidence confirming her intention to proceed.

The court accepted that the failure to attend was inadvertent and that the solicitor had intended to participate in the assessment.

Finding no prejudice in allowing the matter to proceed on its merits, the court set aside the hearing officer’s decision and ordered the matter returned for a full assessment hearing.

The appellant, Nortex Roofing Limited, appealed a Master's decision dismissing its motion for leave to issue third-party claims in an action arising from water damage to a construction project.

The appellant argued the Master improperly converted a Rule 29 motion into a Rule 20 summary judgment motion and misapplied the discoverability test for limitation periods.

The Divisional Court dismissed the appeal, finding the Master properly exercised his discretion by considering all relevant circumstances, including undue delay and limitation defences, and correctly analyzed the Limitations Act.