Julian Heller

The Plaintiff brought a motion to strike supplementary affidavit evidence filed by the Responding Defendants in their summary judgment motion.

The Plaintiff argued that the supplementary affidavits were improper under the Rules of Civil Procedure, specifically Rule 39.02, as they were filed after a Rule 39.03 examination had commenced.

The Defendants contended that Rule 39.02 was not violated because the affidavits were not filed after a cross-examination on the Plaintiff's affidavit, and a Rule 39.03 examination is a form of primary evidence to which reply affidavits are permissible.

The court accepted the Defendants' position, finding that a Rule 39.03 examination is distinct from a Rule 39.02 cross-examination and does not preclude the filing of reply affidavits.

The Plaintiff's motion was dismissed.

The appellant appealed a master's order granting the respondent leave to maintain an action commenced while its business-name registration had lapsed and while there were alleged filing defaults under corporate disclosure legislation.

The court held the proceeding was not a nullity ab initio and that the saving provisions in the Business Names Act and Corporations Information Act were available.

Applying the statutory three-part tests, the court found sufficient evidence that the non-compliance was inadvertent, that the public had not been deceived or misled, and that the respondent was compliant at the time of the motion.

The appeal and the challenge to the $10,000 costs award were dismissed.

The plaintiff sought leave to maintain an action and amend its statement of claim after commencing proceedings while non-compliant with registration requirements under the Business Names Act and the Corporations Information Act.

The defendant moved to dismiss or permanently stay the action on the basis that the expired business name registration rendered the action a nullity.

The court held that proceedings commenced while non-compliant are not necessarily nullities and may continue if leave is granted under the statutes.

Applying a “gentle” interpretation of the legislation and finding that the non-compliance had been rectified and caused no prejudice or deception, the court exercised its discretion to grant leave and permit amendment of the claim.

The defendant’s motion to dismiss or stay the action was refused.

In a motion relating to an application under the Building Code Act concerning the refusal of a building permit, the moving party sought production of the responding municipality’s expert engineer’s entire file and related communications.

The court considered the scope of implied waiver of litigation privilege where an expert affidavit has been served.

Applying authorities including Conceicao Farms Inc. v. Zeneca Corp. and Ebrahim v. Continental Precious Minerals Inc., the court held that waiver should be narrowly construed and that automatic production of an expert’s entire file is not required absent evidence raising concerns about the expert’s independence or authorship of the report.

As no such concerns existed and foundational information had already been produced, the request for full disclosure of the expert’s file was denied.

The court ordered limited re-attendance of witnesses for further cross-examination by video conference concerning new information arising from undertakings.

Following dismissal of an appeal from a master's order requiring a corporate plaintiff to post security for costs, the court addressed a dispute concerning responsibility for the resulting costs award.

The individual plaintiff argued that only the corporate plaintiff should be liable because the appeal formally related to the corporate entity.

The court found that both plaintiffs had advanced the appeal jointly, shared interests in the litigation, and were represented together without distinction in the materials.

Given the joint strategy and unified presentation of claims, the costs order properly applied to both plaintiffs.

The court confirmed that both plaintiffs were jointly responsible for paying the $30,000 costs award to the defendants.

The purchaser of a dry cleaning business sought to rescind the purchase agreement, claiming a common mistake regarding the property's zoning.

The motion judge granted rescission, finding the parties shared a mistaken assumption that the business was a 'permitted use' under the zoning by-law.

The Court of Appeal allowed the vendor's appeal, holding that the motion judge made a palpable and overriding error.

The Court found no evidence of a shared assumption about the technical 'permitted use' status, noting the business operated as a legal non-conforming use.

The Court also held that the purchaser bore the risk of zoning issues under the principle of caveat emptor, as the agreement contained no zoning conditions.

The defendants moved for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing that one plaintiff was a nominal party and that the corporate plaintiff lacked sufficient assets to satisfy a potential costs award.

The court held that the individual plaintiff was not a nominal plaintiff because he was personally a party to the alleged contract and asserted personal claims in the pleadings.

However, the corporate plaintiff failed to provide reliable financial disclosure demonstrating sufficient assets and had not produced basic financial records or tax filings.

Applying the established two‑step test for security for costs, the court found good reason to believe the corporation could not satisfy a costs order and exercised its discretion to order staged security.

Security of $120,000 for each set of defendants was ordered, payable in three installments tied to the litigation timetable.

The appellant challenged the validity of a municipal election in Ward 9 of the City of Toronto, arguing that 275 Voters' List Change Request Forms (VLCRFs) were invalid because they lacked an election official's signature.

The application judge declared the election invalid, but the Divisional Court overturned this decision.

The Court of Appeal dismissed the appeal, applying the substantive approach from the Supreme Court of Canada's decision in Opitz.

The Court held that the omission of the election official's signature was a procedural irregularity that did not compromise the voters' underlying entitlement to vote, and therefore did not affect the result of the election.

The moving parties sought leave to appeal a $50,000 substantial indemnity costs order made after the parties reached a consent resolution on a relief from forfeiture application.

The court found the costs order was interlocutory, as the underlying consent order did not finally dispose of the parties' rights.

Leave to appeal was granted because there was good reason to doubt the correctness of the costs order, particularly regarding the motions judge's reliance on untested affidavit evidence, the characterization of the tenant as the successful party, and the awarding of costs against a corporate officer personally.

The court also found the proposed appeal involved matters of general importance regarding costs awards following settlements.

Following a consent order restoring a commercial tenant to leased premises after a landlord lockout, the court determined the appropriate costs of the application.

The applicant sought substantial indemnity costs, arguing the respondents engaged in aggressive and intimidating conduct, including unsupported allegations about the tenant’s business and delaying litigation steps.

The court held that the respondents’ conduct unnecessarily prolonged the proceeding and warranted sanction.

Applying the principles of reasonableness and proportionality under Rule 57.01 and the guidance in Boucher, the court fixed costs on a substantial indemnity basis but reduced the requested amount.

Costs of $50,000 inclusive of fees, disbursements, and taxes were awarded to the applicant.

The landlord sought an interim injunction against a tenant operating a restaurant and nightclub alleged to be producing excessive noise that interfered with other commercial tenants in the building.

Evidence showed that noise levels regularly exceeded the maximum permitted level established in a pre-opening Noise Plan and municipal by-law enforcement had issued citations.

Applying the test for interlocutory injunctions from R.J.R. MacDonald v. Canada (A.G.), the court found a serious issue to be tried, a risk of irreparable harm to the landlord through loss of current and prospective tenants, and that the balance of convenience favoured interim relief.

The court ordered the tenant to limit sound output to 91 dBA and to facilitate installation of a noise monitoring system pending the full injunction hearing.

Following a successful appeal by the municipality and elected candidates that upheld the validity of a municipal election, the court determined the costs of the proceedings.

The court held that the unsuccessful challenging candidates were not entitled to have their costs paid by the municipality, despite claiming public interest litigant status.

However, the court ordered the municipality to pay the partial indemnity costs of the successful elected candidates, recognizing they were blameless parties drawn into expensive litigation due to mistakes made by municipal election officials.

The court also ordered one of the challenging candidates to pay the costs of a motion he unreasonably opposed.

The appellants appealed a decision declaring the 2010 municipal elections for Ward 9 City Councillor and Ward 4 TDSB Trustee invalid due to election officials failing to sign Voters List Change Request Forms.

The Divisional Court allowed the appeal, finding that while the failure to sign the forms was an irregularity, it did not affect the result of the elections because the vast majority of the voters had signed declarations confirming their eligibility to vote.

The Court held that the elections were conducted in accordance with the principles of the Municipal Elections Act and set aside the order for by-elections.

The moving party sought costs of her successful motion to intervene as a party in an appeal.

The respondent argued that no costs should be awarded or that costs should be determined by the panel hearing the appeal, alleging that the moving party violated the scope of the permitted intervention by filing prohibited evidence.

The court ordered that the costs of the motion to intervene be determined by the panel hearing the appeal, as they were best positioned to assess compliance with the intervention conditions.

During an appeal regarding a municipal election, the intervenor/appellant sought to introduce affidavit material detailing after-the-fact efforts to determine voter eligibility through canvassing and signed forms.

The Divisional Court ruled the evidence inadmissible, citing concerns over its hearsay nature and lack of reliability based on how it was compiled.

Consequently, the responding affidavit material was also excluded.

Three parties brought motions to intervene in appeals from a judgment declaring two municipal elections invalid.

The successful candidate in one ward sought to be added as a party, a voter whose vote was discounted sought to intervene as a friend of the court, and a neighbouring municipality sought to intervene as a friend of the court.

The court granted all three motions, finding that the successful candidate had a direct interest, the voter offered a unique perspective on the voting process, and the neighbouring municipality could provide useful context on the impact of the lower court's decision on municipal elections generally.

The defendant dentist sold his practice to the plaintiff and signed an agreement containing non-competition and non-solicitation clauses.

The plaintiff obtained an interlocutory injunction enforcing the restrictive covenants and restraining the defendant from advertising in the Iranian media.

The defendant sought leave to appeal to the Divisional Court.

The court denied leave to appeal the general injunction, finding no reason to doubt its correctness.

However, the court granted leave to appeal the order restraining advertising in the Iranian media, finding conflicting case law on whether general advertising constitutes solicitation and noting the issue's general importance to diverse communities.

The City of Toronto appealed a decision ordering its Chief Building Official to issue building permits for sun rooms using sandwich panels and to evaluate the applicant's load test data.

The City argued that section 9(1) of the Building Code Act granted the official discretion to refuse to evaluate test results if the testing method was not specified in the Building Code.

The Divisional Court dismissed the appeal, holding that section 9(1) does not grant discretion to defeat applications relying on design methods authorized in the Building Code, such as load testing.

The court also upheld the motions judge's factual finding that the submitted data was adequate and dismissed the appeal on costs.

The appellant, SimEx Inc., acquired rights to certain films from IMAX Corporation under a Transfer Agreement.

A dispute arose when a third party, Robots of Mars, Inc., commenced arbitration in California claiming unpaid royalties under a prior Production Agreement with IMAX.

IMAX cross-claimed against SimEx, arguing SimEx assumed all liabilities under the Production Agreement.

SimEx applied for a declaration in Ontario that it was not bound by the Production Agreement's arbitration and royalty clauses.

The application judge dismissed the application, finding the assignment conveyed both benefits and burdens.

The Court of Appeal allowed the appeal, holding that the unambiguous terms of the Transfer Agreement only transferred ownership rights to the films, not the contractual obligations of the Production Agreement.

The appellants appealed a trial judgment declaring that the testator's wife was the sole beneficiary of his estate.

The will, drafted on a stationer's form, contained ambiguous language granting the wife the estate 'for her use absolutely' but also included a gift over to the testator's nieces and nephews upon her death.

The Divisional Court set aside the trial judgment, finding that the trial judge erred in applying the rule in Re Walker.

Applying the 'armchair rule' from Re Burke, the Court held that the testator's clear intention was to grant his wife a life interest in his half of the estate, with the remainder vesting in his nieces and nephews.