Katie Black

The appellant appealed from an order of an associate judge that prohibited discovery motions without leave, made in the context of a dismissed motion for particulars in a lawyer's negligence action.

The court found the associate judge had jurisdiction to make the order as a term under Rule 37.13 or Rule 1.05, rather than under Rule 37.16 which addresses vexatious litigants.

However, the court concluded the order could not stand due to a lack of procedural fairness, as neither party had been given notice that the order was being contemplated or an opportunity to make submissions.

The appeal was granted and the order was set aside.

No costs were awarded as the appeal was unopposed.

The applicant, E. Automotive Inc., sought to unwind a transaction under section 248 of the Business Corporations Act, RSO 1990, c B.16, after its shareholding in Autocorp.

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Inc. was diluted below 33 1/3% through the issuance of shares to Blossom Street Ventures.

The court found that E. Automotive Inc. did not have a reasonably held expectation that its shareholding would not be diluted below a certain threshold, nor that shares would not be issued below market value for the purpose of affecting a vote.

The application was dismissed.

The applicant, a residents' association, sought judicial review of the respondent City's decision to grant a heritage permit to a property owner (the intervenor) for the construction of a new house in a designated heritage conservation district.

The applicant argued the proposed house was too large and violated the mandatory mass and height guidelines of the District Plan, and that it was denied procedural fairness because it was not invited to appear before City Council.

The Divisional Court dismissed the application, finding the City's interpretation of the District Plan was reasonable and that the applicant had been afforded extensive procedural fairness during the committee stages, exceeding the requirements of the statutory scheme.

The moving party sought to quash an appeal and dismiss a related motion for leave to appeal on jurisdictional grounds.

The Court of Appeal determined it lacked jurisdiction to hear the appeal, applying principles from *Iris Technologies Inc. v. Rogers Communications Canada Inc.*, which held that under s. 17(9) of the *Arbitration Act, 1991*, there is no further right of appeal from a Superior Court judge's decision reviewing an arbitrator's preliminary jurisdictional ruling.

The Superior Court had overturned an arbitrator's decision regarding the validity of a lease and its arbitration clause.

Consequently, both the appeal and the motion for leave to appeal were quashed.

The plaintiff, CPOS Inc., brought a motion for an injunction to compel the defendant, Brandon Hwon Munn Fong, to return and have confidential information professionally wiped from his electronic devices by a third party.

CPOS abandoned its claim of improper solicitation.

The court ordered Fong to describe and delete the documents himself, rejecting CPOS's request for third-party wiping.

This decision addresses the costs of that motion.

Fong sought substantial indemnity costs, arguing CPOS's motion was heavy-handed and unsuccessful on the key issue.

CPOS argued its conduct was not improper and the relief granted was more robust than Fong's offers.

The court found Fong substantially successful on the main issue of the wiping method.

Considering factors under Rule 57, including success, claims, complexity, and offers to settle, the court ordered CPOS to pay Fong costs on a liberal partial indemnity basis.

The City of Ottawa brought a motion to strike four affidavits and quash two notices of examination filed by the Rockcliffe Park Residents Association in support of its application for judicial review of a decision granting a heritage permit.

Applying a hybrid approach, the court struck portions of the affidavits that contained argument or speculation but left the admissibility of the remaining evidence to the panel hearing the application.

The court quashed the notice of examination for one City Planner who was not involved in the impugned decision, but permitted the examination of the other planner, subject to strict limits on the scope of questioning and document production.

Costs of $7,500 were awarded to the residents association based on divided success.

The plaintiff, CPOS Inc., brought a motion seeking an order to compel the defendant, Brandon Hwon Munn Fong, to return and professionally wipe confidential information from his personal devices and email account.

The defendant agreed to search and delete the information but objected to an independent consultant performing the search.

The court dismissed the plaintiff's motion, finding no evidence of misuse of information by the defendant and stating that a detailed search of personal devices should not be ordered based on suspicion or speculation.

The court emphasized that such intrusive orders are reserved for exceptional circumstances with convincing evidence of intentional deletion of relevant information.

The court ordered the defendant to provide an affidavit listing documents, produce them upon request, and then delete them.

The moving party sought costs against the appellant after the appellant withdrew his appeal of the City's refusal to grant a heritage permit.

The moving party argued the appellant acted unreasonably by pursuing an appeal with no reasonable prospect of success and withdrawing it shortly before the hearing.

The Tribunal dismissed the motion, finding that the appellant's conduct in attempting to settle the matter and subsequently withdrawing the appeal in a timely manner did not constitute unreasonable, frivolous, vexatious, or bad faith conduct.

This endorsement addresses three motions: the applicant's motion to strike portions of the respondent's affidavit, the respondent's cross-motion to strike portions of the applicant's affidavit and exhibits, and the applicant's motion to compel answers refused during cross-examination.

The applicant, a former director of the Canadian Internet Registration Authority (CIRA), challenged his disqualification as a board candidate and sought corporate documents related to CIRA's financial affairs, including employee severance packages.

The court dismissed both parties' motions to strike, affirming that preliminary motions to strike on evidentiary grounds are generally inappropriate and admissibility should be left to the application judge.

The applicant's motion to compel answers was allowed in part, compelling answers related to the bona fides of his document request and board briefings on financial settlements, but upholding refusals on questions concerning the merits of whistleblower allegations or legal opinions.

Success was deemed evenly divided, with no order as to costs.

The Ontario Land Tribunal held a Case Management Conference regarding an appeal of the City's refusal to issue a heritage permit for the construction of a dwelling in a heritage conservation district.

The Tribunal granted party status to a residents' association and approved the Draft Procedural Order and Issues List.

The Tribunal declined to include a legal jurisdictional issue in the Issues List, noting that such a challenge should be brought by way of a formal motion.

A five-day hearing was scheduled.

The applicant appealed the City of Ottawa's refusal to issue a permit for the construction of a dwelling in a heritage conservation district under the Ontario Heritage Act.

At the second Case Management Conference, the Tribunal granted provisional party status to the Rockcliffe Park Residents Association.

The Tribunal scheduled a further Case Management Conference to allow the parties to finalize the issues list and identify expert witnesses.

The moving parties brought a motion for leave to appeal an order dated March 9, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $6,000 to the responding party.

The plaintiff brought a motion to compel documentary production and address refusals and undertakings from the defendants, including the corporate defendant AF Global Asset Management Inc. The litigation concerned a significant investment in a Brazilian real estate development, with allegations of misrepresentation, misappropriation of funds, and inadequate record-keeping.

The court considered the scope of relevance, proportionality, and practicality of discovery, particularly regarding electronic financial records.

The motion was largely granted, with specific orders for the production of financial documents, fulfillment of undertakings, and the corporate defendant to produce a representative for discovery.

The applicant, a funeral home, sought judicial review of the Bereavement Authority of Ontario's decision to grant a conditional licence to a competing crematorium and visitation centre located on the same property.

The respondents brought a motion to dismiss the application for lack of standing.

The Divisional Court granted the motion, finding that the applicant lacked private standing as it was not directly affected by the decision and its rights were not infringed.

The court also found the applicant lacked public interest standing, as the case did not raise a serious justiciable issue and the applicant's true motive was to eliminate a competitor.

This is a costs endorsement following an appeal where the appellants were successful.

The Court of Appeal invited written submissions regarding the costs of the summary judgment motion below.

The appellants submitted their costs, while the respondent declined to provide any.

The court awarded the appellants their costs in responding to the motion for summary judgment, fixed at $3,500 inclusive of disbursements and HST.

The appellants appealed a summary judgment that dismissed their action against one of the individual defendants, Paolo Messina, following an altercation at a waterpark where two minor appellants were assaulted.

The Court of Appeal found that the motion judge made several errors of law and fact, including improperly reversing the onus of proof, failing to draw an adverse inference from the respondent's failure to file an affidavit, and relying on inadmissible hearsay evidence.

The court emphasized that the moving party bears the initial evidentiary burden in summary judgment motions and reiterated the caution against granting partial summary judgment due to the risk of inconsistent findings.

The appeal was allowed, the summary judgment set aside, and the motion dismissed.

The defendants sought leave to appeal an order granting the plaintiffs leave to amend their statement of claim, arguing the new claims were statute-barred.

The Divisional Court dismissed the motion for leave to appeal, clarifying that because the motions judge did not finally dispose of the limitations defence, the order was interlocutory.

The defendants remain free to plead the limitations defence in response to the amended claim at trial.

The plaintiff retained new counsel shortly before trial and brought a motion for leave to amend the statement of claim, conduct further discovery, and file an expert report, despite the action having been set down for trial.

The court granted the motion, finding that the proposed amendments did not add new causes of action and that the defendants would not suffer irremediable prejudice.

The court also permitted further discovery, noting that the recent production of audited financial statements justified the plaintiff's change in strategy.

This motion addressed outstanding refusals and undertakings in two related actions: a breach of warranty claim by Orbcomm Inc. against Randy Taylor Professional Corporation following an acquisition, and a defamation claim by former SkyWave officers against Orbcomm.

The court ruled on several discovery issues, ordering Orbcomm to provide specific information and answers to questions, but upholding litigation privilege for an expert's instruction letter and denying early identification of trial documents.

The court also set out a process for the defendant to seek leave for extended discovery.

Following the dismissal of the appellants' motion for leave to appeal an Ontario Municipal Board decision regarding a development on lands with significance to indigenous persons, the successful respondents sought costs.

The court declined to award costs against the appellants, finding they met the criteria for public interest litigants as they raised issues of public importance regarding indigenous religious sites and had no pecuniary interest in the outcome.

Additionally, the court awarded costs to the appellants' counsel personally against one of the respondents for an abandoned claim for personal costs under Rule 57.07(1).