Kevin O’Brien

The Town of Ajax sought an order requiring the respondents to demolish and remove above-grade construction carried out without a building permit at 599 Kingston Road West, Ajax.

The respondents acknowledged the unpermitted construction but resisted demolition, arguing they should be allowed to continue obtaining the requisite Record of Site Condition (RSC).

The property had a history of soil contamination from its prior use as an automotive facility.

The respondents had entered into a Conditional Building Permit Agreement allowing only below-grade work pending RSC approval, but proceeded to construct above-grade elements without authorization.

Despite multiple warnings, stop work orders, and a mandatory injunction, construction continued.

The court found the respondents' conduct was a calculated decision by an experienced developer to circumvent regulatory requirements and ordered demolition as the only appropriate remedy to enforce building code compliance and protect public safety.

Corus Entertainment Inc. sought a declaration that Rogers Communications Inc. could not remove one of Corus's television channels from its existing packages, citing affiliation agreements and regulatory "standstill" provisions under the Broadcasting Distribution Regulations.

Corus also sought an interlocutory injunction to prevent the channel's removal pending a CRTC decision and a sealing order for confidential information.

The court dismissed the application for a declaration, finding that the affiliation agreement granted Rogers the broad right to create and modify television packages, which included the right to remove channels.

The court also dismissed the interlocutory injunction, holding that the CRTC had exclusive jurisdiction over regulatory matters and that Corus failed to demonstrate irreparable harm.

Finally, the sealing order was denied as the information was not deemed confidential under the "open court" principle, and the test for sealing orders was not met.

The plaintiff general contractor sued the Toronto Transit Commission (TTC) and other owners for approximately $193 million in damages arising from the delayed construction of the Steeles West Subway Station.

The project was delayed by 1,047 days due to incomplete designs, utility issues, and numerous changes directed by the TTC.

The court found the TTC responsible for the delay and awarded the plaintiff damages for extended contract performance, acceleration costs, underfunded change directives, and unpaid notices of intent to claim.

The court dismissed the plaintiff's attempt to flow through subcontractor claims where liquidating agreements had extinguished the plaintiff's liability.

The TTC's counterclaim for liquidated damages was dismissed as a penalty.

The plaintiff was granted a construction lien for $57,697,627.06.

The Plaintiffs moved to strike the Defendant GuestLogix Inc.'s defence or compel a further and better Affidavit of Documents, arguing deficiencies including the deponent's lack of direct knowledge.

GuestLogix cross-moved for a further affidavit from the Plaintiffs and to dispense with the requirement for a signed affidavit.

The court dismissed the Plaintiffs' motion, finding GuestLogix's affidavit, sworn by an insurer's representative, to be appropriate given the company's prior CCAA sale and lack of original personnel.

The court also found GuestLogix had complied with its production obligations.

The Defendant's cross-motion was satisfied as the Plaintiffs had delivered the requested documents.

Costs were awarded to the Defendant.

The appellants, a fertility doctor and her professional corporation, appealed the dismissal of their action against a former colleague for breach of fiduciary duty and unjust enrichment regarding a government funding application.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings.

The court upheld the trial judge's conclusions that no fiduciary duty existed due to the absence of an undertaking to act in the beneficiary's best interests, and that there was a juristic reason for any enrichment because the funding application was made honestly and in accordance with the parties' agreement at the time.

The Ontario Court of Appeal allowed an appeal concerning the enforcement of a Letter of Request (LoR) from a U.S. court.

The LoR sought confidential financial and valuation documents from Matvil Corp., a non-party, to assist Actava TV, Inc.'s damages expert in a U.S. action using a "yardstick" method.

The Court found that the application judge erred in her relevance and public policy analyses, and failed to adequately consider Canadian sovereignty.

The requested information was deemed overly broad, speculative, and not directly relevant to the material issues in the U.S. action, and its disclosure would be contrary to Canadian public policy given the sensitive nature of the data and the inadequacy of protective orders.

The appellant sought to bring a Canadian class action against the respondent BP p.l.c. for securities misrepresentations.

His 2019 amended statement of claim, which introduced a claim for fraudulent misrepresentation, was struck out by the motion judge as statute-barred under the Limitations Act, 2002.

This appeal addressed four key issues: the elements of a "claim" for fraudulent misrepresentation under the Limitations Act, the appropriateness of the motion judge's factual findings regarding discoverability based on U.S. litigation, whether the fraudulent misrepresentation claim was a new claim or an alternative theory, and the propriety of deciding a limitations issue on a Rule 21.01(1)(a) motion.

The Court of Appeal dismissed the appeal, finding that while the motion judge erred in his discoverability analysis and reliance on U.S. pleadings, the fraudulent misrepresentation claim was indeed a new, statute-barred claim, and the limitations issue was appropriately decided on a Rule 21.01(1)(a) motion due to undisputed facts.

In a class action for secondary market misrepresentation, the court approved a $1.275 million settlement, the proposed distribution plan, class counsel's fees of $357,000 plus disbursements, and an honorarium of $15,000 for the representative plaintiff.

The settlement was deemed fair, reasonable, and in the best interests of the class, considering the high risks and complexities of the litigation and the limited recovery range due to a CCAA order.

The court emphasized the need for exceptional contribution to justify a representative plaintiff's honorarium, which was found to be present in this case.

The plaintiff, Alex M. Bodnarchuk, brought a consent motion to certify a class action for settlement purposes and to obtain leave to proceed with a secondary market misrepresentation claim under the Ontario Securities Act against Guestlogix Inc., Brett Proud, and Patrick Leung.

The action alleged misrepresentations and omissions regarding credit facilities and financial covenants.

The parties reached a settlement of $1,275,000.

The court granted leave, finding the action was brought in good faith and had a reasonable possibility of success for settlement purposes.

The court also certified the action as a class proceeding for settlement purposes, finding all criteria under the Class Proceedings Act, 1992 were met.

The order approved the settlement notices and procedures for opt-outs and objections, and set a date for the settlement approval hearing.

The plaintiff, Catalyst Capital Group Inc., appealed a motion judge's decision to strike out several of its claims against Dundee Kilmer Developments Limited Partnership (DKD), Infrastructure Ontario (IO), and the Crown.

The claims arose from Catalyst's exclusion from financing the 2015 Pan/ParaPan American Games Athletes' Village project.

The Court of Appeal allowed the appeal in part, reinstating Catalyst's claims against DKD for breach of a funding term sheet, breach of fiduciary duty, and unjust enrichment/quantum meruit.

However, the court upheld the striking of unjust enrichment/quantum meruit claims against IO and the Crown, the public law duty claim against IO and the Crown, and the misrepresentation claim against the Crown, finding them either statute-barred, lacking direct benefit, or precluded by statutory immunity.

The plaintiffs and defendants were fertility doctors who worked together at a clinic for many years.

When the Ontario government announced public funding for fertility procedures, the defendant applied for and received funding for her new clinic, using historical data from both doctors' practices.

The plaintiff, who ultimately chose not to join the new clinic, sued for breach of fiduciary duty and unjust enrichment, claiming she was cut out of the funding.

The court dismissed the claims, finding no per se or ad hoc fiduciary duty existed, as the defendant did not undertake to forsake her own interests.

The court also found a juristic reason for any enrichment, as the plaintiff autonomously chose not to join the new clinic or negotiate an agreement to access the funding.

In the alternative, damages were assessed at $2,578,050.

The defendant brought a motion to strike the plaintiff's claim for fraudulent misrepresentation as statute barred under the Limitations Act, 2002, and to dismiss the proposed class action.

The plaintiff had commenced a proposed class action for secondary market misrepresentations following the Deepwater Horizon oil spill.

The court found that the plaintiff discovered his claim by 2010, but did not plead fraudulent misrepresentation until 2019.

The court held it was plain and obvious the claim was statute barred and struck it.

As the plaintiff was disqualified from being a representative plaintiff for the remaining truncated statutory claims, the entire action was dismissed.

This is a costs endorsement on appeal from a Superior Court decision.

The appellant, Bondfield Construction Company Limited, appealed from orders of Justice E.M. Morgan dated March 28, 2018 and May 29, 2018.

The respondents, The Globe and Mail Inc. and associated journalists, had brought a motion.

The Court of Appeal addressed whether CCAA proceedings against Bondfield precluded the court from addressing cost issues relating to the appeal.

The court found no reason to depart from the presumption in section 137.1(8) regarding costs on the motion, resulting in no order as to costs.

However, regarding costs on the appeal, the court awarded costs to Bondfield in the amount of $8,000, inclusive of disbursements and relevant taxes, noting that the jurisprudential landscape had shifted significantly between the motion and the appeal.

Bondfield Construction Company Limited appealed the dismissal of its defamation action against The Globe and Mail Inc. under section 137.1 of the Courts of Justice Act (anti-SLAPP provision).

The motion judge had dismissed the action, finding that Bondfield failed to meet the requirement to show that the defendants had "no valid defence whatsoever." The Court of Appeal allowed the appeal, holding that the motion judge had misinterpreted the statutory threshold.

The correct test requires the plaintiff to show only that a reasonable trier could conclude that the defendant did not have a valid defence, not that the defendant has no defence whatsoever.

The court found that Bondfield met this lower threshold regarding the defences of fair comment and responsible communication.

On the public interest balancing analysis, the court found that the case had none of the hallmarks of a classic SLAPP suit and should proceed to trial on its merits.

The plaintiff, Carillion Construction Inc., brought a motion to compel answers to a refused question during the "executive discovery" of the City of Toronto's representative.

The question sought disclosure of all relevant facts known by a key City employee, Jelena Rekalic, or relayed by her to others or counsel.

The City argued that such communications were protected by solicitor-client and litigation privilege.

The court dismissed the motion, finding that the broad request for "every fact" conveyed by Ms. Rekalic would improperly trench upon privilege and effectively constitute a second discovery without leave, which is not permitted under the Rules of Civil Procedure.

The court addressed costs and interest following a prior judgment on share valuation.

Due to mixed results and the inherent unpredictability of share valuation, the court ordered each party to bear their own costs, including expert fees.

On the issue of interest, the court determined that the discretion to award interest to dissenting shareholders under the Ontario Business Corporations Act (OBCA) was not curtailed by the corporation's ability to pay.

Prejudgment interest was awarded at the prescribed rate of 0.8% from the date of the statutory offer (May 11, 2017) to the date of the judgment, with postjudgment interest thereafter, on the determined share values for the dissenting shareholders.

The plaintiffs, Sustainable Development Technology Canada (SDTC), Leah Lawrence, and Jane Pagel, brought a motion for summary judgment against Kim Sigurdson for defamation and sought a permanent injunction.

Sigurdson had made numerous public statements accusing the plaintiffs of illegal acts, unethical conduct, racism, and fraud, primarily in an attempt to force settlement of his consulting fee claims.

The defendant failed to provide evidence to support his allegations, relying on the defense of justification.

The court found the statements defamatory, rejected the defenses of justification, fair comment, and qualified privilege due to lack of evidence and malice.

Damages were awarded to the plaintiffs, and a permanent injunction was issued to prevent further defamatory publications.

The applicant company sought to fix the fair market value of common shares held by dissenting shareholders who opposed amendments to create convertible preferred shares.

The court rejected the applicant's liquidation approach to valuation, instead valuing the company as an ongoing concern using the discounted cash flow (DCF) method.

The court determined that a three-month time delay in the commencement of projected cash flows was appropriate, balancing the company's straightened financial circumstances with its ongoing viability.

The "en bloc" fair market value was fixed at $12,300,000, resulting in a per share value of $0.304.

In a complex mega-litigation concerning the Union Station construction project, Metrolinx, as a third party, brought a motion for particulars against the City of Toronto's amended third-party claim.

Metrolinx sought more specific details, particularly regarding the itemization and quantification of damages, arguing it needed this information to plead its defence and assess its exposure for mediation.

The City argued that the requested information constituted evidence, not particulars, and would be provided through expert reports during discovery.

The court dismissed Metrolinx's motion, holding that the City's pleading provided sufficient material facts for Metrolinx to plead, and that detailed quantification of damages and evidence of specific incidents were matters for discovery, not the pleading stage, especially in complex litigation.

This endorsement from a case conference provides updates on the progress of multiple consolidated actions.

Key discussions included the status of document production between Carillion and the City of Toronto, scheduled motions by the City against subcontractors for document production, and a hearing for construction lien matters.

The endorsement also addressed NORR Limited's statement of claim against the City, the participation of various subcontractors in mediation, and Metrolinx's contemplation of motions for particulars and to strike against the City's third-party claim.

The court set a timeline for Metrolinx to decide on its participation in the upcoming mediation, contingent on the outcome of its motion for particulars.