Kara L. Denny

The appellants (Fasco) appealed a motion judge's decision to strike their defences to claims for contribution and indemnity by the respondent (Venmar) based on res judicata and abuse of process.

The underlying dispute involved two separate house fires, six years apart, both allegedly caused by a defective heat recovery ventilation unit (HRV) manufactured by Venmar, containing a motor manufactured by Fasco.

The motion judge had found that prior Quebec litigation concerning the first fire precluded Fasco from raising certain defences in the Ontario actions.

The Court of Appeal allowed Fasco's appeal, finding that the motion judge erred by not applying the "plain and obvious" test, and incorrectly concluded that the causes of action and issues were identical between the Quebec and Ontario proceedings, particularly given the different factual contexts (e.g., Venmar's evolving knowledge of defects) and the contractual indemnity defence Fasco sought to raise.

The court also noted that the motion judge should have considered the timeliness of Venmar's motion.

The appellant appealed a decision dismissing his application for a declaration of ownership and exclusive use of a disputed strip of land based on adverse possession.

The strip had been enclosed by a fence between two properties from December 1992 to December 2002.

The application judge found that while actual possession was established, the appellant failed to prove the requisite intention to exclude the true owner or effective exclusion.

The Court of Appeal upheld the dismissal, finding no errors of law or principle in the application judge's reasoning and confirming that the presumption of intention to exclude arising from a fence is not mandatory and may be rebutted by the absence of corroborating evidence.

The appellants appealed a decision of the Superior Court of Justice regarding the entitlement to deposits in a real estate transaction.

The application judge had determined that the respondents were prima facie entitled to the deposits based on the written contracts.

The appellants argued the application should have been converted to an action and raised claims for relief from forfeiture.

The Court of Appeal upheld the application judge's decision, finding that the application was properly authorized under the Rules of Civil Procedure, that there were no material facts in dispute, and that the deposits were true deposits with no evidence of disproportionality or unconscionability.

The plaintiff's slip and fall action was dismissed against the remaining defendants (Marriott entities) after the Workplace Safety and Insurance Appeals Tribunal (WSIAT) determined it had exclusive jurisdiction, barring the civil claim.

This decision concerns the costs of the action and the defendants' motion to dismiss.

The court found both counsel responsible for the unnecessary motion due to poor communication and unreasonable cost claims, particularly the defendants' inclusion of WSIAT costs which are not recoverable.

The court fixed the costs of the action for the remaining defendants at $2,500 all-inclusive and awarded no costs for the motion itself, emphasizing the waste of court resources and unrecoverable legal fees caused by counsel's failure to communicate meaningfully.

The defendants sought leave to appeal a motion judge’s order dismissing their summary judgment motion that argued the plaintiff’s tort claim was statute-barred under the Limitations Act, 2002.

The underlying action arose from a motor vehicle accident and involved whether the plaintiff’s claim was discoverable before the two‑year limitation period expired.

The defendants argued the motion judge misapplied the discoverability test and overlooked medical evidence, including MRI findings and expert assessments, which they claimed demonstrated the plaintiff knew or ought to have known of a threshold injury earlier.

The court held that the motion judge properly applied the discoverability test from Peixeiro v. Haberman and reasonably concluded that a genuine issue requiring a trial existed.

Leave to appeal was denied because there was no conflicting authority, no serious reason to doubt the correctness of the decision, and the proposed appeal raised no issue of broader importance.

The plaintiff brought a motion under Rule 26.01 to add a maintenance contractor as a defendant in a personal injury action arising from an escalator incident at a theatre.

The motion was served more than two years after the accident, requiring the court to determine whether the discoverability principle under the Limitations Act, 2002 could extend the limitation period.

The court found that the plaintiff had early knowledge of the contractor’s potential involvement through incident reports and communications with insurance adjusters but took no investigative steps to pursue the claim.

The court held that neither the plaintiff nor her counsel demonstrated due diligence sufficient to establish a triable issue on discoverability.

The motion to add the proposed defendant was therefore refused as statute-barred.

A third party defendant brought a motion for summary judgment seeking dismissal of negligence allegations in a third party claim arising from a water main failure involving high density polyethylene pipe.

The court applied the framework for summary judgment articulated in Hryniak v. Mauldin and considered whether the evidentiary record demonstrated a genuine issue requiring a trial.

Several negligence allegations relating to manufacturing defects, inspection failures, and product design were dismissed on partial summary judgment.

However, claims alleging that the pipe may have been damaged while in the moving party’s care, custody, or control were allowed to proceed because causation remained unresolved among multiple parties who handled the pipe.

The court concluded that determining which party caused the fracture required a full evidentiary record and credibility findings best addressed at trial.