Junior Sirivar

The defendant sought leave to amend a statement of defence to withdraw admissions made more than two decades earlier acknowledging the validity of a personal guarantee given in connection with a corporate loan.

The proposed amendment would allow the defendant to assert defences of undue influence, lack of proper independent legal advice, and vulnerability.

The court held that the motion was governed by rule 51.05 of the Rules of Civil Procedure because the amendment effectively sought withdrawal of admissions.

The moving party failed to establish that the amendment raised a triable issue, that the original admissions were inadvertent or based on wrong instructions, or that the withdrawal would not cause prejudice.

Allowing the amendment would also constitute an abuse of process because the defendant had relied on the validity of the guarantee in prior litigation and sworn evidence.

The moving parties sought orders staying two Ontario proceedings pending a determination by the Quebec Superior Court regarding jurisdiction and forum in a parallel creditors’ action.

The actions arose from the collapse of an offshore bank alleged to have operated a multibillion-dollar Ponzi scheme, with claims that the defendant bank was liable for wrongful acts or omissions in providing correspondent banking services.

The court granted an interim stay of the Ontario “placeholder” action commenced by joint liquidators to preserve limitation periods, finding that parallel proceedings justified holding the Ontario action in abeyance pending the Quebec court’s determination.

The court also temporarily stayed a separate Ontario action brought by a small group of creditors to avoid duplicative litigation until the jurisdictional dispute in Quebec was resolved.

Costs were awarded to the joint liquidators as moving parties.

The plaintiff lender brought a motion for summary judgment to recover loan funds advanced to a corporation controlled by the individual defendant.

The individual defendant admitted in criminal proceedings that he misused the loan funds and arranged the murder of the lender’s principal when he could not repay the debt.

The court found there was no genuine issue requiring a trial and granted judgment for the outstanding loan amount.

The court pierced the corporate veil, finding the corporation and the individual defendant were interchangeable for purposes of the loan and that the corporation functioned as a façade for improper conduct.

Punitive damages were refused because the action was grounded in breach of contract and no independent actionable wrong associated with the breach justified such damages.

The appellant appealed a trial judgment granting declaratory relief that limited the respondent's obligation to indemnify the appellant for royalties payable under a net smelter return royalty agreement.

The trial judge found the indemnification obligation was limited to a flat rate of 0.013% NSR, as indicated in the schedules to the purchase agreements, rather than the sliding scale royalty actually required by the underlying agreement.

The Court of Appeal dismissed the appeal, upholding the trial judge's conclusion that the specific references to the 0.013% NSR rate reflected the parties' intention and overrode general references to assuming all obligations.

The appellants appealed an order striking out portions of their statement of claim.

The struck portions alleged that the respondent bank owed a duty of care to the appellants, who were not its customers, to inquire into its customer's activities to ensure the accounts were not used for fraudulent purposes.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the facts pleaded did not give rise to a recognized duty of care, nor did they warrant recognizing a new duty of care under the Anns/Kamloops principles.

The appellants, former directors and officers, sought a declaration that their insurer was obligated to pay 90 or 100 per cent of their defence costs for civil and regulatory proceedings arising from conduct in 2001 and 2003.

The insurer had been paying 50 per cent, arguing the policy only covered the 2001 conduct.

The application judge dismissed the application.

On appeal, the Court of Appeal found the policy's allocation provisions ambiguous when read with the definition of 'Loss'.

Because the factual record was insufficient to resolve the ambiguity or determine if the doctrine of contra proferentem applied, the Court allowed the appeal and directed a new hearing on the allocation issue.

The appellant appealed an order striking its claim against the respondent employees on a Rule 21 motion.

The motion judge had concluded that a release executed by the corporate parties included the employees and that the action was an abuse of process.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the release covered the employees, and that the motion judge impermissibly weighed evidence.

The Court also held that bringing a subsequent action against the employees was not an abuse of process, as the specific issues and duties of care were not decided in the earlier action against the principal.

The College of Nurses of Ontario brought disciplinary proceedings against a registered nurse for professional misconduct.

The allegations included documenting care that was not performed on a home care client and leaving a shift early at a long-term care facility while failing to follow proper narcotics count and key handover procedures.

The Discipline Committee found that the Member committed professional misconduct.

The Committee ordered a reprimand, a one-month suspension to take effect upon any reinstatement of her certificate of registration, and imposed conditions on her return to practice.

The Member, a registered nurse, faced allegations of professional misconduct relating to the care of an elderly patient.

The Member admitted to failing to respond to the patient's requests for assistance, placing the patient in a darkened room without a call bell, restraining the patient without consent or a physician's order, failing to document the restraint, and verbally abusing the patient.

The Discipline Committee accepted an Agreed Statement of Facts and found the Member committed professional misconduct.

The Committee accepted a Joint Submission as to Penalty, ordering an oral reprimand and, should the Member ever re-register, a three-month suspension and practice conditions.

The Member, a registered practical nurse, faced allegations of professional misconduct after being convicted of theft over $5,000 for defrauding her former hospital employer of approximately $96,500.

The Member admitted to the allegations and the panel found that she committed professional misconduct.

Accepting a joint submission on penalty, the panel ordered a reprimand, a one-month suspension of her certificate of registration, and imposed conditions including the completion of an ethics course and restrictions on handling employer finances.

The parties reached a settlement on the appeal from the judgments of Justice Susan E. Greer.

The Court of Appeal ordered that the $1.5 million held in trust pursuant to a prior order be transferred forthwith to Goldman Sloan in trust pending further order, and that necessary consents be filed to give effect to the Minutes of Settlement.