Julien G. Bonniere

The plaintiff was shopping at a retail store when she tripped and fell, fracturing her hip.

She sued the store for negligence and breach of the Occupiers' Liability Act, alleging that an employee's shopping cart created a hazard.

The defendants moved for summary judgment, arguing that CCTV footage showed the plaintiff tripped over another patron's wheeled basket.

The court granted the motion, finding no genuine issue for trial as the store's actions did not cause the fall and the premises were reasonably safe.

The action was dismissed with costs awarded to the defendants.

The defendant municipality appealed an interlocutory order of an Associate Justice granting the plaintiff leave under Rule 31.03(2)(b) to conduct a limited, one-hour examination for discovery of a second corporate representative, supplemented by up to two pages of written questions.

The appellant argued the Associate Justice committed palpable and overriding errors by relying on a non-existent agreement between the parties regarding a hybrid examination process and by misapplying the strict test for examining a second corporate representative.

The court found the Associate Justice correctly applied the test from Fischer v. IG Investment Management Ltd., made findings grounded in the record, and fashioned a proportionate remedy addressing discovery incompleteness.

The appeal was dismissed.

The plaintiff brought a motion seeking to strike the defendant's statement of defence for failure to attend examinations for discovery and mediation, and in the alternative, sought an order compelling the defendant to produce Marc Wade as its representative for discovery.

The defendant opposed the motion to strike and the order compelling production of Marc Wade, but did not oppose a status hearing or extension of the set-down deadline.

The court granted the motion to compel production of Marc Wade as the discovery representative, finding him to be the controlling mind of the defendant and therefore an appropriate officer or employee under the Rules of Civil Procedure.

The court dismissed the motion to strike the statement of defence, finding the defendant had reasonably explained its failures and that striking the defence was not a proportionate remedy.

The court granted a status hearing, extended the set-down deadline, and imposed a court-ordered litigation timetable.

The defendant was ordered to pay costs fixed at $14,000 on the partial indemnity scale.

The defendants brought a motion to dismiss or stay an action for want of jurisdiction, or alternatively to decline jurisdiction on the basis of forum non conveniens.

The plaintiff, a U.S. resident, commenced an action in Ontario seeking $2 million in damages for injuries sustained in a trip and fall incident at the Fairmont Banff Springs Hotel in Alberta.

The court found no real and substantial connection between Ontario and the dispute for Parks Bottom and Fairmont Banff Springs, and determined that Accor and OMERS had rebutted the presumption of jurisdiction.

The court also found that Alberta was a far more convenient forum.

The action was stayed against all defendants.

This ruling addresses whether Anne Meehan, a plaintiff, is competent to testify at trial.

The court reviews medical assessments of Ms. Meehan’s capacity, the statutory requirements under the Ontario Evidence Act, and the parties’ arguments regarding the necessity and form of a competency examination.

The court concludes that a voir dire is required to determine Ms. Meehan’s competency, as mandated by section 18(2) of the Evidence Act, and clarifies that such an examination need not occur in a formal courtroom setting.

The court considered motions regarding the production of documents and attendance at discovery in a dispute over unpaid legal fees between a law firm and its former client.

The plaintiff law firm sought to strike the defence or compel the defendant to provide an affidavit of documents and attend discovery.

The defendant cross-moved for a further and better affidavit of documents from the plaintiff, including the law firm's accident benefits file.

The court held that both parties must fulfill their discovery obligations independently, ordered production of the accident benefits file (with privilege claims to be listed in Schedule B), and declined to strike the defence.

No costs were awarded due to divided success.

The court considered an application under the Unconscionable Transactions Relief Act to set aside litigation loan agreements entered into by Chadwick Randy Kelly (by his litigation guardian and attorney for property) with BridgePoint Financial Services Limited Partnership I. The loans, used to purchase and retrofit a home after a catastrophic injury, had grown to over $1.1 million due to compounding interest.

The applicants argued the loans were excessive, harsh, and unconscionable.

The court found that, given the risk profile, the lack of alternative financing, and the terms of the agreements, the loans were not excessive or unconscionable under the Act.

The application was dismissed and costs awarded to the respondent.

The appellants appealed a trial judgment ordering them to pay $160,171.70 in quantum meruit for cottage renovation work and $256,163.05 in substantial indemnity costs.

The appellants argued the remediation work was a fixed-price contract and that quantum meruit should not apply to customized goods left in the contractor's warehouse after the appellants terminated the project.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the contract was not fixed-price and that the contractor was entitled to reimbursement for the customized goods.

The substantial indemnity costs award was upheld due to the appellants' unproven and aggressively maintained allegations of fraud.

The appellants, an investment syndicate holding a first mortgage, appealed an order denying their priority over a second mortgagee (Greenpath) for certain disputed amounts from a power of sale.

The application judge found these amounts were not properly part of the first mortgage and constituted prohibited penalties under s. 8(1) of the Interest Act.

The Court of Appeal dismissed the appeal, affirming that the forbearance agreement was separate from the first mortgage and not enforceable against the second mortgagee, and that the disputed prepayment and default fees were unlawful penalties under the Interest Act due to lack of evidence proving they were legitimate costs.

The appellants brought a motion to traverse their appeal to the Divisional Court.

The respondent consented to the transfer early on a without-costs basis, but the appellants unreasonably refused and sought costs against the respondent's counsel personally without basis.

The court granted the transfer on consent and awarded the respondent substantial indemnity costs of the motion due to the appellants' unreasonable conduct.

The defendants brought a motion for security for costs against the plaintiff, who was ordinarily resident outside Ontario (Lithuania) and claimed impecuniosity.

The court applied the two-stage test for security for costs under Rule 56.01(1)(a) and (e).

The plaintiff successfully demonstrated impecuniosity with robust particularity and showed that her personal injury claim, involving an objective shoulder fracture from a slip and fall on ice, was not clearly devoid of merit.

Consequently, the motion for security for costs was dismissed, and the defendants were ordered to pay the plaintiff's costs.

Two related applications were brought to determine the priority and validity of $283,508.64 in disputed fees claimed by the first mortgagees following a power of sale.

The second mortgagee argued the fees were not part of the first mortgage and violated s. 8(1) of the Interest Act.

The court held that the forbearance agreement containing the fees did not form part of the first mortgage and could not be enforced in priority to the second mortgage.

Furthermore, the court found the default and prepayment fees constituted unenforceable penalties under s. 8(1) of the Interest Act, meaning they could not be claimed against the mortgagor or guarantor either.

The mortgagee brought a motion for judgment seeking possession of the property and payment of amounts due under a second mortgage, while the mortgagor brought an application for a reference to determine the amounts owing.

The mortgagor disputed various administrative and legal fees claimed by the mortgagee.

The court disallowed all disputed fees, finding no evidence they reflected real costs legitimately incurred, rendering them unenforceable penalties and violations of section 8 of the Interest Act.

The court determined the amounts owing based on principal, undisputed interest, and condominium arrears, ordered vacant possession, and awarded costs to the self-represented mortgagor.

The plaintiffs in a medical malpractice action brought a motion to extend the time to set down the action for trial and for a new timetable.

The defendants opposed the motion, arguing the plaintiffs failed to provide an acceptable explanation for the delay and relying on the presumption of prejudice.

The court applied the two-part test from Faris v Eftimovski, finding that the plaintiffs provided an adequate explanation for the delay in the context of seeking further discovery and expert reports.

The court also found that the defendants would suffer no non-compensable prejudice, as clinical records were available, discoveries had been conducted, and expert reports exchanged.

The motion was granted, and a new timetable was established.

The appellant employer sought to amend its statement of defence to add a counterclaim against the respondent, alleging that the respondent's lawsuit against a former employee constituted intentional interference with economic relations and induced a breach of contract.

The Associate Justice dismissed the motion, finding the proposed claims untenable in law because commencing a civil action is not an unlawful act.

On appeal, the appellant raised a new argument based on the tort of abuse of civil process.

The Divisional Court dismissed the appeal, holding that new arguments should generally not be raised on appeal and that, in any event, the proposed counterclaim did not meet the test for abuse of process.

The defendant brought a motion to amend its statement of defence to add a counterclaim against the plaintiff.

The proposed counterclaim alleged intentional interference with economic relations and inducing breach of contract, based solely on the plaintiff's commencement of the underlying action.

The court dismissed the motion, finding that the proposed counterclaim was legally untenable because commencing a lawsuit does not constitute an unlawful act and the defence of justification would apply to the inducing breach of contract claim.

The plaintiff brought an action for damages arising from a motor vehicle incident where he abruptly stopped to avoid downed guy wires caused by the defendants' snow plow.

The plaintiff claimed to have suffered electrocution and permanent, debilitating headaches.

The court found the plaintiff's evidence unreliable and uncorroborated, concluding he suffered only soft tissue injuries that resolved within two years.

The defendants' motion to dismiss the non-pecuniary claims for failing to meet the statutory threshold under the Insurance Act was granted.

The claims for past and future income loss were also dismissed as the plaintiff had been fully compensated by prior benefits.