Marie Henein

The defendants moved to strike the plaintiff's claim for abuse of process, arguing that the prior decision in Leavens v. Schwartz (the "Shotgun Decision") had finally disposed of the matter.

The plaintiff sought to challenge a buy/sell transaction that had been enforced by the court, alleging that the defendants had engaged in a secret investment arrangement with third-party financiers without disclosure.

The court found that the claim constituted an abuse of process because the underlying subject matter was identical to the prior proceeding, the issues could have been raised before the prior judge, and the plaintiff was essentially seeking to undo a final court decision with which he was dissatisfied.

The court struck the claim without leave to amend.

The court addressed two pretrial motions: one seeking to stay a counterclaim based on abuse of process due to delayed disclosure of a cooperation agreement, and another seeking leave for third-party discovery.

The motion to stay was dismissed, as the immediate disclosure rule for settlement agreements was found not to apply to agreements with non-parties.

The motion for third-party discovery was granted, with the court finding the non-party's evidence critical and that the cooperation agreement constituted a constructive refusal to provide information, making a pretrial examination necessary for trial fairness.

The plaintiffs sought to enforce an "Outline of Terms of Settlement" reached during mediation, arguing it constituted a binding agreement.

The defendants contended that the Outline was not intended to be enforceable and lacked essential terms.

The court found that the Outline did not objectively reflect a mutual intention to create a binding agreement and that numerous material issues, including debt reallocation, minority shareholder rights, and tax implications of asset transfers, remained unresolved.

The court dismissed the motion, emphasizing that it cannot create a contract for parties where essential terms are missing.

Nadeem Ahmed appealed his conviction for fraud and knowingly using a forged document, arguing his police statement was involuntary due to misleading advice regarding potential immigration consequences.

The Court of Appeal for Ontario dismissed the appeal, affirming the trial judge's finding that the statement was voluntary.

The court held that police are not required to explain every possible consequence of the criminal justice process, including immigration, and that the officer's statements were not misleading.

The decision emphasized the deference owed to a trial judge's voluntariness ruling unless a palpable and overriding error is demonstrated.

The appellant physician appealed a decision of the Discipline Tribunal of the College of Physicians and Surgeons of Ontario, which found he committed sexual abuse and professional misconduct, resulting in the revocation of his licence.

The appellant argued the Tribunal erred in its credibility assessments, misapplied the concept of incremental disclosure, and applied uneven scrutiny to the evidence.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the Tribunal's detailed and nuanced credibility findings, which preferred the patient's evidence over the appellant's.

The applicant, a milk processor, sought judicial review of two decisions by the Agriculture, Food and Rural Affairs Appeal Tribunal upholding the Dairy Farmers of Ontario's (DFO) order requiring the applicant to pay approximately $7 million for milk pricing adjustments.

The DFO had charged the applicant the highest price for milk after audits revealed the applicant's Milk Utilization Verification (MUV) declarations could not be verified due to inadequate record-keeping.

The Divisional Court dismissed the application, finding the Tribunal's interpretation of the regulatory scheme—that MUV declarations must be verifiable—was reasonable.

The Court also upheld the Tribunal's findings that the higher price was a surcharge, not a penalty, and that the interlocutory order requiring a $3.3 million letter of credit was reasonable.

The applicant, a Justice of the Peace on long-term disability, sought judicial review of a decision by the Justices of the Peace Review Council recommending her removal from office.

The Council found she committed judicial misconduct by practicing law without a license or insurance on three occasions.

The applicant argued the hearing panel breached procedural fairness by not granting a further adjournment and that the penalty was unreasonable due to her cognitive disabilities.

The Divisional Court dismissed the application, finding the hearing was procedurally fair and the recommendation for removal was reasonable given the lack of reliable medical evidence supporting a cognitive deficit and the severity of the misconduct.

The appellant physician was found to have committed professional misconduct involving sexual abuse of a patient, resulting in the mandatory revocation of his certificate of registration.

He brought a motion for a stay of the penalty pending his appeal to the Divisional Court.

The court applied the RJR-MacDonald test and dismissed the motion, finding that the appellant would not suffer irreparable harm and that the balance of convenience, given the public interest in a zero-tolerance approach to sexual misconduct by health professionals, weighed heavily against granting a stay.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

The appellants appealed a motion judge's decision striking out portions of their statements of defence.

The impugned pleadings referred to documents and communications from a judicial mediation, which the motion judge found were prima facie protected by settlement privilege.

The Divisional Court dismissed the appeal, holding that the motion judge correctly applied Rule 25.11 of the Rules of Civil Procedure.

The court affirmed that the respondents had not waived settlement privilege and that the justice of the case did not require an exception to allow the appellants to plead the privileged information to defend against breach of fiduciary duty claims.

The moving parties sought leave to appeal from the decision of Cavanagh J. dated August 26, 2021.

The Divisional Court granted the motions for leave to appeal and awarded costs in the agreed amount of $20,000 payable by the responding parties.

A case management teleconference was scheduled to settle a schedule for the exchange of appeal materials and to schedule an expedited appeal date.

The plaintiffs, Andrew and Selena Stronach, brought motions to strike out portions of the defendants' Fresh as Amended Statements of Defence under Rule 25.11 of the Rules of Civil Procedure.

The plaintiffs argued that the impugned pleadings improperly referenced documents and communications that were subject to settlement privilege arising from a confidential judicial mediation.

The defendants argued that the plaintiffs had waived privilege or that an exception applied based on the justice of the case.

The court found that the mediation was subject to settlement privilege, the plaintiffs had not waived the privilege, and no exception applied.

The court granted the motions to strike the pleadings relating to the mediation.

The court also struck out portions of one defendant's pleading as scandalous, but dismissed a motion to require another defendant to reinstate a withdrawn admission.

The plaintiffs, Andrew and Selena Stronach, sought leave to amend their respective statements of claim in two related actions concerning the management of the Stronach family business and trusts.

The defendants, including Belinda Stronach, opposed the amendments on several grounds, primarily arguing that references to a May 2020 Agreement were barred by settlement privilege.

The court found that the defendants failed to prove the May 2020 Agreement was intended to be kept confidential, and alternatively, that any privilege had been waived or an exception applied.

The court also rejected arguments that the amendments improperly withdrew admissions or were scandalous and vexatious.

Leave to amend the pleadings was granted.

This is an application for directions regarding the application of section 16 of the Youth Criminal Justice Act (YCJA) to a case involving historical sexual offences.

The accused was charged in two separate proceedings: one in youth justice court for offences allegedly committed before turning 18, and one in adult court for offences allegedly committed after turning 18.

The court was asked whether the youth justice court would have jurisdiction over the entire time period if the youth justice court information were amended to cover the entire period spanning the accused's 18th birthday.

The court held that section 16 of the YCJA grants the youth justice court clear jurisdiction over offences alleged to have occurred during a period that includes the date the accused turned 18, regardless of whether the exact timing of the offences can be ascertained.

The applicants sought declaratory relief to prevent the Independent Electricity System Operator (IESO) from terminating their Feed-in Tariff (FIT) Contracts for failing to achieve commercial operation by the required milestone date.

The applicants argued that estoppel by convention applied based on a shared assumption that the IESO would grant an 18-month extension.

The court dismissed the application, finding no manifest representation by the IESO to establish a shared assumption, and noted that the entire agreement and waiver clauses in the contracts precluded reliance on past practices.

The applicants, solar power project developers, sought a declaration that the Independent Electricity System Operator (IESO) did not have the right to terminate their Feed-In-Tariff (FIT) contracts for failing to achieve commercial operation by the Milestone Date for Commercial Operation (MCOD).

The IESO had previously waived this right but issued a warning letter revoking past waivers following a government directive to wind down pre-construction energy contracts.

The court applied principles of contractual interpretation and found that the FIT contracts, which included a 'time is of the essence' clause, unambiguously granted the IESO the right to terminate for failure to meet the MCOD.

The application was dismissed.

The plaintiff brought motions to discontinue the action against an individual defendant, to certify the action as a class proceeding, and for partial summary judgment.

The court approved the discontinuance as it did not prejudice the class and secured the corporate defendant's consent to certification.

The court certified the class action against the remaining defendants, finding that the pleadings disclosed causes of action under the Consumer Protection Act and Competition Act, and that a class proceeding was the preferable procedure.

However, the court dismissed the plaintiff's motion for partial summary judgment, concluding that the nature of the relationship between the defendants and the interpretation of the statutory provisions raised genuine issues requiring a full trial.

The appellant was convicted of first degree murder following a seven-week jury trial.

This was his second trial on the charge; his prior conviction had been overturned by the Court of Appeal in 2013.

The Crown's case relied heavily on the testimony of Mark Yegin, a witness of questionable credibility who testified that he witnessed the appellant and Shant Esrabian shoot the victim, Hussein El-Hajj Hassan, in a secluded rural area west of Ottawa in August 2004.

The Crown's theory was that the appellant orchestrated the murder in retaliation for the victim's decision to purchase drugs directly from a supplier, thereby cutting the appellant out of the sales chain.

The Court of Appeal allowed the appeal and ordered a new trial, finding multiple legal errors in the trial judge's charge to the jury.

The appellant lawyer appealed a decision of the Law Society Tribunal's Appeal Division, which upheld a Hearing Division finding of professional misconduct and a $200,000 costs award.

The misconduct related to the appellant's inadequate preparation of Personal Information Forms for Hungarian Roma refugee claimants and his failure to adequately supervise his staff.

The Divisional Court dismissed the appeal, finding that the Appeal Panel reasonably concluded the Hearing Panel's findings of fact, credibility assessments, and costs award were supported by the evidence and fell within a range of reasonable outcomes.

The appellant appealed from a contempt order under which he was ordered jailed.

On the eve of the expedited appeal hearing, the appellant accepted an offer to settle under which he agreed to pay the respondent's costs of the appeal on a full indemnity scale.

The court found the costs claimed to be wholly disproportionate and far beyond the range of anything that could be considered reasonable, even on a full indemnity basis.

The court fixed costs of the appeal at $30,000 inclusive of disbursements and applicable taxes on a full indemnity basis.

Additionally, the appellant sought an extension of time to appeal the order underlying the contempt finding and several other orders, but was largely unsuccessful.

Costs of the motions were fixed at $7,500 on a partial indemnity scale.

No order was made as to costs in relation to the respondent's motion to deny audience to the appellant.