Laura M. Day

The appellant challenged an order striking her action for real estate commission claims against a listing agent, a brokerage, and the brokerage's insurer.

The court held that the farm property commission claim was barred by the earlier Small Claims Court decision and that no viable claim lay against the insurer under s. 132 of the Insurance Act or the pleading rules.

However, the court found the motion judge erred in treating the commercial property commission claim as res judicata because the earlier decision had expressly excluded that claim from adjudication.

The statement of claim was struck, but leave to amend was granted solely for claims relating to the commercial property and any other properties to which the agreement might apply.

The court also fixed and varied costs, including a reduced costs award below and a modest appeal costs award to the self-represented appellant against one respondent.

The plaintiffs brought a motion to approve a settlement for a minor plaintiff's personal injury claim.

The court dismissed the motion, citing two primary concerns: the minor's litigation guardian (his father) was also acting as counsel for the plaintiffs, violating Rules 7.05(3) and 15.01, which require a litigation guardian to be represented by a lawyer.

Additionally, the litigation guardian was also an FLA claimant, creating a potential conflict of interest as he had a personal stake in the settlement allocation, which was not adequately explained.

The court emphasized the necessity of independent legal representation and a dispassionate assessment to protect the minor's best interests.

The moving party, a corporate defendant, brought a motion for a complex protective order before producing an affidavit of documents or reviewing its own relevant documents.

The plaintiff consented, but the self-represented co-defendant did not respond.

The court dismissed the motion, finding it premature and the proposed order over-broad.

The court noted that the moving party failed to identify specific harm associated with the disclosure of particular documents and relied on sweeping generalizations instead of the existing protections under the Rules of Civil Procedure.

The appellants appealed orders of the Superior Court dismissing their motions to set aside a settlement order approving a settlement of their son George Lochner's claim for damages arising from a police altercation in which he was tasered.

The appellants lacked standing to challenge the settlement order as they were not parties or persons affected by it within the meaning of the Rules of Civil Procedure.

Their second motion was an abuse of process as it attempted to re-litigate the same standing issue.

The appellants' proposed fresh evidence regarding George Lochner's taser injuries was inadmissible as it could not have affected the outcome of the motions.

The appeals were dismissed with costs awarded to the respondents and the Public Guardian and Trustee.

The Public Guardian and Trustee (PGT) and the defendant police officers brought a motion seeking a declaration that Lina and Paul Lochner lacked standing to challenge a court-approved settlement concerning George Lochner, a party under disability.

The court found that Lina and Paul had received courtesy notice of the settlement approval motion but were not legally entitled to notice, nor were they "affected persons" under Rule 37.14(1) as their proprietary or economic rights were not impacted.

The court granted the PGT's motion, declaring Lina and Paul had no standing, and awarded costs against them due to their unmeritorious arguments and disruptive courtroom behaviour.

The court also initiated a process under Rule 2.1.02 to summarily dismiss Lina and Paul's own motion to set aside the settlement judgment as an abuse of process.

The self-represented plaintiffs sought leave to appeal an order refusing their request to adjourn the trial.

The plaintiffs wanted an adjournment to challenge a settlement approved for a co-plaintiff under a disability.

The motion judge had denied the adjournment, finding no prejudice to the plaintiffs proceeding to trial while continuing to challenge the settlement.

The plaintiffs failed to attend the trial, resulting in the dismissal of their claim.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no matters of public importance.

The defendants, the City of Mississauga and Peel Condominium Corporation #89 (PCC89), brought motions for summary judgment to dismiss the plaintiff's action for injuries sustained in a trip and fall on a municipal boulevard.

The City argued the boulevard was in reasonable repair or that it lacked knowledge of the non-repair and took reasonable steps.

PCC89 argued it was not an occupier of the municipal property and had no liability.

The plaintiff contended both defendants owed a duty of care and that genuine issues for trial existed regarding the hole's size, the defendants' occupier status, and the reasonableness of their inspection policies.

The court dismissed both summary judgment motions, finding that there were genuine issues requiring a trial, including the actual size of the hole, the extent of PCC89's maintenance and control over the boulevard, and the reasonableness of the City's inspection policy.

The plaintiff brought an unsuccessful summary judgment motion in a wrongful dismissal action.

The parties made written submissions on costs.

The defendant sought costs of $88,332.37 payable immediately, while the plaintiff argued costs should be reserved to the trial judge.

The court held that because the plaintiff was unemployed and the motion materials would be useful at trial, ordering immediate payment of significant costs would impede access to justice.

Costs of the motion were reserved to the trial judge.

The Regional Municipality of Durham appealed the dismissal of its motion requiring Zurich Insurance Company Ltd. to defend it in an automobile negligence action.

Durham was an additional insured under a policy held by its winter maintenance contractor.

The statement of claim included allegations related to the contractor's work as well as other allegations against Durham.

The Court of Appeal allowed the appeal, holding that the insurer has an unqualified duty to defend the entire action where pleadings allege facts that trigger coverage, even if the defence furthers the defence of uncovered claims.

The insurer was ordered to provide Durham with independent counsel at its expense, subject to a potential apportionment of costs at the end of the proceedings.

The applicant, a self-represented individual, sought a declaration that a one-year trespass notice barring him from attending municipal council meetings violated his Charter rights.

The municipality issued the notice following an incident where the applicant questioned a councillor and refused to stop videotaping.

The Superior Court of Justice found that the trespass notice infringed the applicant's freedom of expression under s. 2(b) of the Charter.

The court held that the complete ban was not minimally impairing and could not be justified under s. 1, as there were less intrusive means to maintain order, such as expelling him from specific meetings if he became disruptive.

The application was allowed and the trespass notice was declared invalid.

Following an 18‑day personal injury trial and subsequent judgment, the court issued supplementary reasons addressing calculation of net past income loss damages and the costs award.

The court interpreted ss. 267.3, 267.5, and 267.8 of the Insurance Act together with s. 3 of the Negligence Act and held that statutory accident benefits deductions must be applied after apportionment of liability and contributory negligence.

After accounting for accident benefit credits and the plaintiff’s 10% contributory negligence, the municipal defendants’ liability for past income loss was fixed at $50,292.50 plus prejudgment interest.

The court also determined the scope of recoverable costs following a prior appeal that set aside the first trial, permitting recovery of preparation costs for the first trial but excluding the trial costs themselves.

Substantial indemnity costs were awarded from the date following a Rule 49 offer to settle.

Following a new trial ordered after settlement with some defendants, the court considered municipal highway non-repair liability arising from a winter collision on a snow-covered S-curve involving a passenger vehicle and a propane truck.

Applying s. 44 of the Municipal Act, 2001, the court held the roadway at Rankins Corner was in a state of non-repair and that the municipality failed to take reasonable steps to address a known winter maintenance hot spot.

The court also found negligence in the truck driver’s operation and contributory negligence by the injured driver, apportioning fault 60% to the municipal defendants, 30% to the truck defendants, and 10% to the injured driver.

Damages were assessed at $300,000 general damages, $130,000 under the Family Law Act, $408,886 in future care excluding attendant care, $2,000,000 in future attendant care, $300,000 past income loss subject to IRB credit, and $1,260,000 future income loss.

Following certification of a class proceeding arising from the collapse of a shopping mall, the court determined the appropriate allocation of costs for the certification motion.

Most defendants did not oppose certification and several entered into settlement agreements regarding costs.

The court distinguished between baseline costs that would have been incurred even if certification had proceeded on consent and additional costs caused by defendants who opposed certification.

The judge concluded that $140,000 represented additional costs attributable to opposition and allocated remaining unpaid costs primarily to the provincial government, whose extensive submissions challenged multiple certification criteria.

Costs were fixed at $15,000 against one defendant and $60,000 against the provincial government, with other amounts accounted for through settlements.

The plaintiffs brought a motion to certify a class action following the collapse of the Algo Centre Mall roof in Elliot Lake, which killed two people and injured dozens.

The proposed class included occupants, tenants, and employees of the mall.

The defendants included the mall owners, builders, engineers, and the Province of Ontario.

The Province opposed certification, arguing it owed no private law duty of care for negligent inspection.

The court found that the pleadings disclosed a valid cause of action for negligent inspection against the Province and that all five prerequisites for certification under s. 5(1) of the Class Proceedings Act, 1992 were met.

The action was certified as a class proceeding.

In a personal injury action arising from a bicycle and motor vehicle collision allegedly caused in part by unlit streetlights on a boundary bridge, a municipal defendant appealed summary judgment dismissing its crossclaim and the action against a co-defendant utility contractor.

The appeal court held that the servicing agreement and the evidence about responsibility for identifying and maintaining boundary-road streetlights were ambiguous and contradictory.

The motion judge erred by treating the parties' common understanding as determinative despite live disputes over contractual allocation of responsibility.

The claims against the contractor were restored for trial.

A defendant electrical contractor brought a motion for summary judgment seeking dismissal of the action and a cross-claim arising from an accident allegedly caused by non-functioning streetlights on a boundary bridge between two municipalities.

The responding municipality argued the contractor should remain in the action pending trial because the municipalities’ respective jurisdiction over the streetlights might still be determined.

The court held that both the municipality and the contractor mutually understood under their Streetlighting Services Agreement that the bridge streetlights were outside the municipality’s jurisdiction.

Because the cross-claim was contractual and there was no possible breach under the agreement as interpreted by the parties’ mutual intention, there was no viable claim against the contractor.

Summary judgment dismissing the action and cross‑claim against the contractor was granted.

The applicant municipalities sought a declaration that their insurers had a duty to indemnify them for damages sought in two underlying actions relating to the expropriation of lands for a Toyota manufacturing plant.

The insurers argued the application was premature as the underlying actions involved substantial disputed facts and potential coverage exclusions, including whether the municipalities gained a personal profit or advantage, or if the claims were for restitution or statutory compensation.

The court dismissed the application, holding that unlike the duty to defend, the duty to indemnify must generally be determined after trial based on findings of fact, and the current record contained too many disputed facts to resolve the coverage issues prematurely.

The representative plaintiff brought a motion for approval of a settlement agreement in a class action arising from the loss of an unencrypted USB key containing the personal information of over 83,000 individuals who received H1N1 vaccines.

The proposed settlement established a claims process for class members who suffered economic harm, with a claim period ending in August 2016, but provided no direct cash payments for anxiety or distress.

Despite objections from some class members regarding the lack of immediate compensation and the length of the claims period, the court approved the settlement as fair and reasonable.

The court noted that the risk of identity theft had largely dissipated over time, making the prospects of success at trial poor, and also approved class counsel fees of $500,000 plus a percentage of future claims.

The Litigation Administrator in a class action sought court approval for its accounts totaling $65,455.25.

The defendants objected, arguing the fees significantly exceeded the initial estimate of $21,500.00.

The court applied the principles for passing a receiver's accounts and found the work was necessary, well done, and the hourly rates were known in advance.

The court approved the accounts up to the end of December 2011, noting that changes in the notice process increased the complexity and expense of the administrator's work.

The appellants appealed a summary judgment decision awarding the respondent damages for wrongful dismissal, specifically challenging the award of a bonus during the 19-month notice period.

The appellants argued the respondent was ineligible for a bonus because he was not actively employed on December 31st of the claim year.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the active employment precondition was not incorporated into the employment contract or brought to the respondent's attention.

The court also upheld the motion judge's calculation of the bonus and her conclusion that there was no genuine issue requiring a trial.