Kevin Whitaker

The defendant brought a motion to strike the plaintiffs’ claim concerning a transfer of real property allegedly gifted by the parties’ parents to the defendant.

The plaintiffs alleged the transfer should be voided based on mental incapacity of the donors, undue influence, and alleged oral promises that the property would pass to them as part of an estate plan.

The court reviewed the test for striking pleadings under Rule 21 and the “plain and obvious” standard.

While certain arguments based on the Statute of Frauds and evidentiary issues were premature at the pleading stage, the court concluded that the plaintiffs lacked standing and that the pleadings could not sustain the relief sought.

The motion to strike was allowed and costs were awarded to the defendant.

The plaintiff brought a Rule 21.01(1)(a) motion seeking a determination that the defendant breached a mutual full and final release by applying to the Criminal Injuries Compensation Board after the settlement.

The defendant cross‑moved for a determination that the release was not breached and that the action should be dismissed.

The court held that the release barred claims for contribution and indemnity against others but did not preclude an application to the Board under the Compensation for Victims of Crime Act.

Such an application is a claim against a statutory compensation fund rather than a claim against another person or corporation.

The defendant’s motion was granted, the plaintiff’s motion dismissed, and costs awarded to the defendant.

Following a five‑day civil trial, the court determined the issue of costs.

The plaintiffs argued that the results of the litigation were mixed and that this should affect the costs award.

The court rejected that characterization, finding the action brought by the plaintiffs was the principal issue and that the cross‑claim was of lesser significance.

Considering the principles in Rule 57 of the Rules of Civil Procedure, including proportionality and the reasonable expectations of the losing party, and having regard to settlement offers, the court fixed costs payable to the defendants.

The plaintiffs commenced an action alleging that $100,000 advanced to the defendants' corporation was a loan repayable on demand.

The defendants argued the payment formed part of an investment agreement under which the plaintiffs would purchase a 25% share of the company and become salaried employee-investors.

The court assessed the credibility of the witnesses and found the defendants' evidence more reliable.

The court concluded the transaction was a share purchase agreement with a non-refundable payment rather than a loan.

The plaintiffs therefore failed to establish their claim on a balance of probabilities.

The defendant brought a summary judgment motion arising from a rear-end motor vehicle collision on the Don Valley Parkway.

The court considered whether the plaintiff could rebut the presumption of negligence that applies where a driver rear-ends another vehicle.

After reviewing affidavit, documentary, and transcript evidence, the court concluded the plaintiff had not rebutted the presumption and had failed to demonstrate any genuine issue requiring a trial.

The evidence established the plaintiff was following too closely and was inattentive to surrounding traffic.

Summary judgment was granted dismissing the plaintiff’s claim.

The applicants brought a motion for contempt against a respondent who had previously been declared a vexatious litigant and permanently enjoined from communicating with or publishing commentary about the applicants.

The applicants filed extensive electronic materials demonstrating continued communications and publications alleging misconduct and bribery by judges and law enforcement officials involved in the earlier proceedings.

The court considered whether the respondent’s conduct was intentional and whether mental health issues might affect her ability to form the requisite intent for contempt.

Pursuant to s. 105 of the Courts of Justice Act, the court ordered a psychiatric assessment before determining liability and sentencing.

Costs were reserved pending completion of the assessment.

Following an eight‑day civil trial in which the defendants were wholly successful, the court addressed costs.

The plaintiffs argued that costs should not follow the event because the litigation was pursued in the public interest and they were allegedly impecunious.

The court considered Rule 57 of the Rules of Civil Procedure, including proportionality, the circumstances of the dispute, the parties’ reasonable expectations, and the existence of settlement offers.

While acknowledging potential financial hardship and the plaintiffs’ stated public interest motivations, the court found that the defendants were entitled to recover costs.

Partial indemnity costs were awarded in a reduced amount, payable jointly by the unsuccessful plaintiffs.

A pharmaceutical company brought summary judgment motions against banks for conversion after an employee fraudulently issued corporate cheques payable to entities with names similar to legitimate customers and deposited them into accounts he controlled.

The banks asserted statutory defences under the Bills of Exchange Act, including the fictitious payee rule and the holder in due course provision, and advanced negligence-based counterclaims and equitable set-off.

The court held the payees were plausibly identifiable real entities and therefore not fictitious or non‑existent for the purposes of s. 20(5) of the Act.

It further found that s. 165(3) did not apply because the cheques were not delivered to authorized persons entitled to them.

The negligence-based counterclaims and related defences were barred by the strict liability regime governing cheque conversion.

Prisoner passengers injured in a rear-end collision while being transported in a police prisoner transport vehicle sought punitive damages against the police service and related defendants after settling compensatory claims with other parties.

The plaintiffs alleged that the design of the transport vehicle—lacking seat belts, padding, visibility, and communication systems—demonstrated reckless disregard for prisoner safety.

The defendants argued the design reflected industry standards and balanced passenger safety with the need to prevent prisoner-on-prisoner and prisoner-on-officer violence.

The court held that punitive damages require malicious, high‑handed, or reprehensible conduct warranting denunciation.

Because the vehicle design reflected a rational policing approach supported by industry practice and reasonable debate over competing safety concerns, the conduct did not meet the threshold for punitive damages.

The plaintiff advanced funds to a partnership operated by relatives pursuant to promissory notes and personal guarantees, including a $1,000,000 loan with an option to convert to equity.

The defendants asserted that the plaintiff elected to convert the loan to equity through a signed authorization, while the plaintiff alleged the document was forged.

The court found the authorization document to be a forgery and held that the plaintiff remained a lender entitled to repayment under the promissory note and guarantees.

The plaintiff also sued a bank for releasing funds from his account without authorization.

The court held that the plaintiff was bound by verification provisions in the bank’s Financial Services Agreement, which relieved the bank of liability due to the plaintiff’s failure to review and report account discrepancies.

Ontario corporations sought to discharge notices of unsecured interests registered on title to their Toronto properties by an individual who was engaged in family law litigation in California against the corporations’ owner.

The respondent sought a stay of the application, arguing forum non conveniens and requesting that the Ontario court decline jurisdiction in favour of the California proceedings.

The court held that by filing a Notice of Appearance the respondent had attorned to the jurisdiction of the Ontario court, rendering forum non conveniens inapplicable.

The respondent had not obtained recognition or enforcement of any foreign order and the corporate applicants were not parties to the foreign litigation.

The court dismissed the motion to stay and granted the application discharging the notices from title.

Following a proceeding in which the defendant was entirely successful, the court addressed the issue of costs.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court emphasized that cost awards should reflect the reasonable expectations of the parties and remain proportionate to the dispute.

Given the defendant’s complete success, the court determined that the defendant was entitled to recover costs.

Costs were fixed in a lump sum inclusive of taxes and disbursements.

The plaintiff corporation sued multiple defendants, including a lawyer who held sale proceeds in trust, alleging breach of trust and conversion arising from the sale of a motor vehicle.

The plaintiff argued the lawyer became a constructive trustee through knowing assistance or willful blindness when he released escrow funds on the direction of the plaintiff’s alleged agent.

The court found the plaintiff’s directing mind had authorized the agent to handle the sale and related arrangements, including the handling of proceeds through counsel.

There was no evidence the lawyer had actual knowledge, recklessness, or willful blindness to any wrongdoing, and the funds were handled in accordance with the agent’s instructions.

As a result, neither constructive trust nor conversion was established.

The plaintiff employer brought an action alleging breach of contract, breach of fiduciary duty, negligent misrepresentation, and intentional interference with economic relations against a former senior executive.

After the defendant’s statement of defence was struck and the defendant was noted in default, the matter proceeded as an uncontested trial where the plaintiff sought liquidated damages including repayment of salary and benefits, costs related to employees hired on the defendant’s recommendation, interest on a business loan obtained based on the defendant’s advice, and unpaid client invoices.

The court found the defendant had engaged in serious misconduct, including falsifying records and impersonating the company’s president, which could justify dismissal for cause.

However, the court held that an employer cannot recover all compensation paid to an employee merely because the employee’s performance was dishonest or deficient.

The plaintiff failed to establish entitlement to the claimed liquidated damages and the action for those damages was dismissed.

The applicant insurer appealed a loss transfer arbitration decision under s. 275 of the Insurance Act arising from a motor vehicle collision between vehicles insured by the parties.

The arbitrator found the applicant insurer’s insured 100% at fault under the Fault Determination Rules and ordered the loss transferred.

On judicial appeal, the court applied the reasonableness standard of review applicable to loss transfer arbitrations and emphasized the deference owed to specialized arbitrators interpreting their home statute and regulatory scheme.

The court held that the arbitrator reasonably applied Rule 14.2 and, alternatively, correctly determined fault under ordinary legal principles.

The arbitration decision fell within the range of acceptable outcomes and was upheld.

Costs decision following litigation between the applicant and multiple respondents in a commercial dispute.

The court considered the discretionary factors under Rule 57 of the Rules of Civil Procedure, including proportionality, complexity, and the reasonable expectations of the unsuccessful party.

Although the matter was not factually or legally complex, it was important to the litigants.

The court found that one respondent had been more successful than the applicant.

Costs were fixed at $30,000 inclusive of taxes and disbursements, payable partly immediately and partly upon the sale of property.

The applicant employer sought a labour injunction under section 102 of the Courts of Justice Act to restrain picketing by locked-out employees.

The court applied the four-part test for a labour injunction and found that the employer failed to demonstrate irreparable harm, as there were no criminal charges, civil actions, or disciplined employees, and the alleged loss of business was a bald assertion.

Furthermore, the court found that the police had been responsive and effective in maintaining the peace.

The application was dismissed.

The applicant sought an oppression remedy under s. 248 of the Ontario Business Corporations Act arising from a dispute between brothers who each owned 50% of a family produce business.

The applicant alleged the responding shareholder operated the company for the benefit of himself and his family, including alleged undisclosed cash transactions, misuse of company assets, and failure to provide financial disclosure.

The court held that the applicant failed to establish reasonable expectations necessary to ground an oppression claim.

The evidence did not demonstrate oppressive, unfairly prejudicial, or unfairly disregarding conduct within the meaning of the statute.

While the oppression remedy was dismissed, the court ordered the sale of the jointly owned property where the business operated under specified terms pursuant to the Partition Act.

The applicant brought a motion seeking to set aside an order striking her pleadings for contempt due to failure to provide court‑ordered disclosure and to set aside a subsequent final order made after an undefended trial granting the respondent an equalization payment and other relief.

The court reviewed the procedural history, noting that the applicant had been repeatedly given opportunities to purge her contempt and comply with disclosure and costs orders but failed to do so.

The applicant did not appeal the earlier orders and did not bring a timely motion within the deadline permitted by the earlier order striking her pleadings.

The court held that the applicant was not entitled to notice of the subsequent undefended trial and failed to establish any basis to set aside the earlier orders.

The motion was dismissed and costs were awarded to the respondent.

The appellant mother appealed a child protection decision granting summary judgment that two children were in need of protection and making them Crown wards without access.

The appellant argued the motions judge improperly relied on hearsay, opinion, and business record evidence and that this reliance violated section 7 of the Charter.

The court held that unopposed affidavit material, verbal agreements, and concessions made during a summary judgment hearing may properly be relied upon, particularly where the parties are represented by counsel and no objection was raised.

The court found no breach of the Charter and concluded the motions judge correctly applied the legal test and made appropriate statutory findings.

The appeal was dismissed.