Jerome R. Morse

The defendants moved to strike the plaintiffs' amended statement of claim on the ground that it discloses no reasonable cause of action.

The court found that the plaintiffs failed to adequately plead the existence of a partnership relationship between the individual plaintiff and the defendants, failed to plead the material facts necessary to establish breach of contract claims with the required clarity and precision, and failed to plead the essential elements of various tort claims including tortious interference with economic interests, breach of fiduciary duty, breach of duty of good faith, unjust enrichment, conspiracy, negligence, and negligent misrepresentation.

The court granted the motion to strike and struck out the amended statement of claim, but granted leave to amend within 45 days.

This decision concerns a dispute over the legal and beneficial ownership of lands surrendered by several First Nations to Canada in 1908, known as the Unsold Surrendered Lands (USL), including the Point Park and associated roads in Fort Frances, Ontario.

The Town of Fort Frances sought summary judgment declaring it the owner of these lands or, alternatively, a public trust or entitlement to damages.

The First Nations, Canada, and Ontario opposed, seeking dismissal of the Town’s claims.

The court found that the Agency One Reserve was a validly created reserve, that the 1908 Order-in-Council (OIC) did not convey the USL to the Town by fee simple or public trust, and that the Town’s claims to the lands, roads, and damages were without merit.

The Town’s motion was dismissed, and the counterclaim struck.

This decision concerns the transition of the receivership of the "The One" development project at Yonge and Bloor in Toronto to Companies’ Creditors Arrangement Act (CCAA) proceedings.

The court granted a discharge order for the receiver, an initial CCAA order, and approved a transaction with Tridel Builders Inc. for project completion.

The court also denied an adjournment request from a late-appearing stakeholder, approved the appointment of a monitor and chief restructuring officer, and authorized various charges and reliefs to facilitate restructuring and maximize value for stakeholders.

This endorsement addresses three motions within a receivership proceeding.

Mizrahi Inc. (MI) sought extensive production of construction documents and an increased reserve, arguing relevance to its pending payment motion and a set-off claim.

The Receiver sought a Lien Claims Resolution Order to standardize the process for resolving lien claims.

Gamma Windows and Walls International Inc. (Gamma) sought an order for payment of invoices, contract termination, and a reference to quantify its lien.

The court largely dismissed MI's document production request, finding it sought information for a collateral purpose (assessing a personal guarantee) and that sufficient information was already available through the SISP Data Room, with a minor exception for general cost information.

The Lien Claims Resolution Order was granted as unopposed.

Gamma's motion was adjourned to allow for consensual discussions, with the court emphasizing that its claims should be resolved through the newly established Lien Claims Resolution process or heard concurrently with MI's payment motion for judicial economy.

This appeal concerned a constitutional challenge by National Steel Car Limited to the costs of Ontario's Feed-in-Tariff (FIT) Program, arguing they constituted an unconstitutional tax disguised as a regulatory charge, primarily intended for economic stimulus.

The appellant contended that the program's true purpose was not related to electricity regulation.

The Court of Appeal upheld the application judge's decision, dismissing the appeal.

The court found that the FIT Program's primary purpose was regulatory, aimed at increasing renewable energy generation, improving air quality, planning for future supply needs, and encouraging Indigenous and community participation, with economic stimulus being an incidental, not dominant, characteristic.

The court also affirmed the sufficiency of the application judge's reasons and his assessment of expert witness bias.

The Receiver sought and obtained two orders: a Construction Continuance Order to approve the engagement of a new construction manager (SKYGRiD) and extend a stay of proceedings, and a Lien Regularization Order to establish a court-supervised process for construction lien claims.

The court found jurisdiction under the Bankruptcy and Insolvency Act and the Courts of Justice Act, concluding that the orders were necessary and appropriate to ensure the ongoing construction of "The One" project and to manage lien claims efficiently without prejudicing claimants' substantive rights.

Objections from the former developer (Mizrahi Parties) regarding their own pending motion for fees were acknowledged but did not prevent the approval of the Receiver's requested orders.

This is an appeal from a Superior Court decision concerning the assessment of a solicitor's bill.

The appellant, a former client, challenged the reversal of two reductions made by an assessment officer: one for annual hourly rate increases without sufficient notice, and another for the law firm's failure to pursue a costs award at the Supreme Court.

The Court of Appeal dismissed the appeal, affirming that the retainer agreement provided adequate notice for rate increases up to $25 per year, especially given the client received independent legal advice.

The court also found the assessment officer erred in principle by granting a reduction for a claim of professional negligence that the client was already pursuing in a separate civil action and had not sought in the assessment hearing.

This was a Rule 7.08 motion for court approval of a $5 million settlement for a minor, Ethan Ajayi, in a medical negligence action.

Unusually, the plaintiffs' counsel did not support the settlement terms but was instructed by the litigation guardian to seek approval.

The court approved the settlement and the associated legal fees, finding it to be in the minor's best interests given the inherent risks of litigation, particularly concerning causation and liability.

The decision also addressed the granting of a partial sealing order to protect solicitor-client privileged information, while declining the request for an in camera hearing, thereby balancing the principle of open courts with the need to preserve fair trial rights.

The appellants appealed a motion judge's decision to strike portions of their Response to a Request for Particulars and Reply.

These struck portions re-introduced allegations of negligence from 2008 and 2009, which a Case Management Master had previously ruled were new causes of action and denied leave to amend the statement of claim to include them.

This Master's decision was upheld on appeal.

The motion judge struck the pleadings based on res judicata, issue estoppel, and abuse of process.

The Court of Appeal dismissed the appeal, affirming that re-litigation doctrines apply to decisions of associate justices (Masters) on pleadings motions, and that the motion judge correctly applied the "plain and obvious" test.

National Steel Car Limited challenged Ontario's Feed-In Tariff (FIT) Programs, arguing that the increased electricity costs passed to consumers via the "Global Adjustment" constituted an unlawful, unconstitutional tax.

The applicant contended that the FIT Programs' stated environmental and energy purposes were a "falsehood" and their true aim was economic stimulus, making the levy a "colourable taxation" enacted by regulation rather than statute, violating sections 53 and 54 of the Constitution Act, 1867.

The court dismissed the applications, finding that the FIT Programs were not colourable taxation and served legitimate regulatory purposes related to Ontario's electricity system, including promoting renewable energy and economic development.

The court concluded that the levy was properly characterized as an intra vires regulatory charge.

The defendants moved to strike the plaintiffs' Response to Demand for Particulars and portions of their Reply.

The plaintiffs had previously been denied leave to amend their statement of claim to add causes of action relating to events in 2008 and 2009, with the court finding those claims were not already pleaded.

The plaintiffs subsequently attempted to assert in their particulars and reply that the original claim did include those causes of action.

The court granted the defendants' motion, holding that the plaintiffs were bound by the prior final decisions under the doctrines of issue estoppel and abuse of process.

The plaintiffs brought a medical malpractice action following a balloon angioplasty procedure that resulted in a ruptured thoracic aorta.

The patient survived but suffered paraplegia and cognitive deficits, eventually passing away years later.

The court found that the interventional cardiologist and vascular surgeon breached the standard of care by failing to consult with a cardiac surgeon and by transferring the patient to the coronary care unit instead of directly to the operating room after an interim endovascular repair.

The court concluded that this delay in obtaining open cardiac surgery caused the patient's neurological injuries.

Judgment was granted for the plaintiffs for an agreed-upon amount of damages.

This endorsement addresses the issue of costs following an application to enforce two Letters of Request from a Florida court, directed at David Smith.

The underlying dispute involved allegations of a hate mail campaign orchestrated by Isaac Perlmutter against Harold Peerenboom, with David Smith allegedly involved.

All parties (Isaac and Laura Perlmutter, Harold Peerenboom, and David Smith) sought costs for the Canadian application.

The court found it impossible to meaningfully decide the issue of costs without knowing the ultimate results of the two related Florida actions, as the success or failure of the allegations would significantly impact the entitlement to costs.

Given the ongoing litigation and the direct interest of all parties in the outcome, the court ruled that each party should bear its own costs.

The appellant was successful on appeal and sought costs for both the appeal and the underlying summary judgment motions.

The parties agreed to fix the appeal costs at $75,000.

For the motions, the appellant sought partial indemnity costs of approximately $212,500.

The respondents argued this amount was excessive and not within their reasonable contemplation, suggesting a cap of $125,000.

The Court of Appeal found that while there was some overlap in the respondents' work, it was not considerable, and fixed the motion costs at $175,000 inclusive of HST and disbursements.

The plaintiffs brought a medical malpractice action against several physicians following the death of a 47-year-old woman who died in hospital from an unknown cause, potentially a pulmonary embolism, acute coronary syndrome, or complications from sepsis.

The plaintiffs alleged the defendant doctors failed to diagnose and treat a pulmonary embolism with full-dose anticoagulation.

The court found that the defendant internal medicine specialists and cardiologists met the standard of care, as their differential diagnoses and treatments were reasonable given the patient's complex presentation.

The court also found the plaintiffs failed to prove causation on a balance of probabilities.

The action was dismissed.

The appellant, a heavy electricity user, challenged the constitutionality of the Global Adjustment component of Ontario's electricity pricing formula, which funds the Feed-in Tariff (FIT) program.

The appellant argued that the FIT program component was a colourable attempt to disguise a tax as a regulatory charge, designed to provide economic stimulus and subsidies to preferred communities (aboriginal peoples, co-operatives, and municipalities) rather than to regulate electricity generation.

The motion judge struck the applications, finding the Global Adjustment was a valid regulatory charge within a closed system.

The Court of Appeal allowed the appeal, finding the appellant's colourability challenge was sufficiently plausible that the applications should not have been dismissed on a pleadings motion and should proceed to a full hearing on the merits.

The court issued a costs endorsement following successful motions by the Attorney General of Ontario, Her Majesty the Queen in Right of Ontario, and the Independent Electricity System Operator (IESO) to strike two constitutional challenge applications.

The applications, brought by National Steel Car Limited, challenged aspects of Ontario's Global Adjustment electricity regime.

The court awarded partial indemnity costs to the Attorney General and Her Majesty in the amount of $50,000, and to the IESO in the amount of $75,000.

The decision considered the general principles of costs under Rule 57.01, the principle of indemnity, and the reasonable expectations of the parties.

It addressed the applicant's argument of being a public interest litigant and confirmed that a party fully participating in and supporting a successful motion, even without formally bringing it, can be awarded costs, subject to adjustment.

The court determined costs following a 20-day trial concerning the ownership of a two-chain strip of land adjacent to the Agency One Reserve.

The plaintiffs, a group of First Nations, were largely unsuccessful in their claim for a declaration of ownership but succeeded on a threshold res judicata issue.

The Corporation of the Town of Fort Frances, a defendant, sought partial indemnity costs from the plaintiffs.

The court rejected the plaintiffs' argument that they were public interest litigants and that costs should be waived or deferred, finding their claim had significant proprietary and financial interests.

While acknowledging the Crown's role in the historical uncertainty, the court found no compelling policy reason to relieve the plaintiffs of costs in relation to Fort Frances, which was not a Crown authority.

The court fixed costs for Fort Frances, reducing a specific expert disbursement.

The appellant tenant sued the respondent commercial landlord for damages arising from roof leaks and a non-functioning gas line.

The landlord obtained summary judgment dismissing the action.

On appeal, the Court of Appeal found that the motion judge erred by failing to resolve material factual disputes regarding when the tenant's obligation to insure commenced and whether the premises were insurable.

The motion judge also committed extricable errors of law in interpreting the 'as is' provisions of the lease by conflating 'Premises' and 'Building' and ignoring a relevant schedule.

The appeal was allowed and the summary judgment set aside.

The respondents brought a motion to strike out two applications challenging the constitutionality of the Global Adjustment under the Electricity Act, 1998.

The responding party argued that the Global Adjustment was an unconstitutional tax that violated s. 53 of the Constitution Act, 1867.

The court applied the Lawson and Westbank tests, concluding that the Global Adjustment is a regulatory charge tied to a complex regulatory scheme, not a tax.

The court found it plain and obvious that the applications could not succeed and granted the motion to strike.