Michael Samuel Hebert

The plaintiffs moved to amend the Certification Order to permit a claim for punitive damages in a class action concerning PFAS contamination allegedly caused by the National Research Council of Canada.

The court reviewed new evidence suggesting the NRC knew or ought to have known about the contamination earlier than previously established.

The court held that the plaintiffs must first bring a motion to amend their pleadings before the Certification Order could be amended, adjourning the motion to add punitive damages as a common issue until that time.

The defendants, McCarney Group LLP et al., sought summary judgment to set aside transactions restructuring an accounting firm ("Oldco") under various insolvency and fraudulent conveyance statutes.

The plaintiffs, former partners and an affiliate of Oldco, alleged the restructuring was a transfer at undervalue designed to defeat their claims.

The court denied the defendants' motion for summary judgment, finding genuine issues for trial regarding Oldco's insolvency at the time of the restructuring and whether the assets (accounts receivable, work-in-process, and goodwill) were transferred at an undervalue.

The court emphasized that expert reports are not strictly required to establish an undervalue, and that oral testimony and cross-examination were necessary to resolve factual disputes regarding asset valuation and the existence of goodwill.

This endorsement addresses the costs of a dismissed motion brought by the plaintiffs for security for their $8,000,000 claim or an injunction against asset dissipation.

The motion was dismissed, and the parties subsequently failed to agree on costs, despite having previously reached an accord on a $1,000,000 security amount.

The court noted that significant costs could have been avoided due to the parties' inability to agree on *when* costs should be determined.

The defendants sought substantial indemnity costs, but the court awarded partial indemnity costs of $140,000 to the defendants, excluding expert report fees that could be utilized at trial, while including costs for cross-examinations.

The plaintiff, Truestar Investments Ltd., was entirely successful in its action, including a motion for summary judgment, which resulted in the setting aside of fraudulent property transfers.

This endorsement addresses the plaintiff's request for partial indemnity costs.

The defendant, Iris Baer, did not dispute Truestar's entitlement to costs but challenged the quantum.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, noting the complexity of the matter, the importance of the issues (recovering assets for creditors in a related bankruptcy), and the conduct of the defendant.

Specifically, Baer's late introduction of an argument necessitated two separate appearances for the summary judgment motion, increasing Truestar's costs.

The court found Truestar's counsel's hourly rates and docketed time reasonable, especially given the senior counsel's experience and the additional work required as the moving party.

The court fixed Truestar's partial indemnity costs at $28,900, inclusive of fees, disbursements, and HST, and awarded an additional $1,750 for costs submissions.

Two appeals from a trial judgment concerning liability for environmental remediation of real property contaminated by dry cleaning solvents.

The trial judge found Fraser Hillary's Limited liable in nuisance and under section 99 of the Environmental Protection Act, awarding over $1.8 million in damages for remediation.

The action against David Hillary was dismissed.

Fraser appealed on grounds that the trial judge erred in finding it liable in nuisance and under the EPA.

The plaintiff appealed on grounds that the trial judge erred in failing to find negligence, failing to find the individual defendant liable in nuisance or negligence, and in assessing damages.

The appellate court dismissed both appeals, upholding the trial judgment.

A motion by Ecojustice for leave to intervene as a friend of the court in an appeal concerning environmental contamination liability.

The underlying judgment held the defendant corporation liable in nuisance and under the Environmental Protection Act for approximately $1.8 million in damages.

Ecojustice sought to provide submissions on environmental law implications and the retrospective application of statutory provisions.

The motion judge dismissed the intervention motion, finding that Ecojustice's proposed submissions would not materially assist the court and would cause injustice to the respondents by requiring them to address new arguments without adequate notice.

The appellant appealed a summary judgment order dismissing its claims in nuisance and negligence relating to contamination of its lands.

The Court of Appeal upheld the motion judge's decision, finding that the appellant failed to produce evidence of negligence or that the respondents knew or ought to have known the facts necessary to ground an action in nuisance.

The court rejected the appellant's argument that the respondents had a duty to inspect or supervise the activities of dry-cleaning tenants on their property, and found that environmental reports obtained by the respondents did not put them on notice of contamination migrating to the appellant's lands.

The defendants (Litwacks) successfully obtained summary judgment and sought costs on a substantial indemnity basis for both the motion and the action.

The plaintiff (Sorbam Investments Ltd.) opposed the quantum and scale of costs.

The court considered the Litwacks' settlement offers, the complexity and importance of the issues, and the conduct of the parties, including the plaintiff's late submission of materials and technical objections.

While acknowledging the Litwacks' counsel's expertise, the court reduced the requested costs, particularly for out-of-town travel disbursements and excessive pre-trial time, and disallowed mediation costs.

The court fixed costs at an amount greater than partial indemnity but less than substantial indemnity, recognizing the Litwacks' settlement offers.

This addendum to reasons for decision addresses a request by the defendant, Fraser Hillary’s Limited, to present supplementary submissions concerning compensation under s. 99 of the Environmental Protection Act, citing the Court of Appeal decision in McCann v. Environmental Compensation Corp. The court declined the request, affirming the principle of finality and finding that the issue did not warrant reconsideration.

The court also clarified its prior finding that applying s. 99(2) was not retroactive and questioned the applicability of McCann to the present case.

The plaintiff, DST Consulting Engineers Inc., brought a motion to compel answers to refusals and re-attendance at examinations for discovery by the defendants, 2299910 Ontario Inc. and CanRil Corporation.

DST claimed $31,114.57 for environmental engineering assessment services.

The court found that the defendants' corporate representative, Charles Guilbault, lacked basic knowledge and provided evasive answers, frustrating the discovery process.

The motion was granted, compelling the defendants to answer most refused questions, provide particulars of alleged deficiencies, and ordering a second examination with a different representative, Terrence Guilbault.

The plaintiff, a former insurance producer, sued DLK Insurance Brokers Ltd. and its partners for breach of contract and unjust enrichment, claiming he was promised an ownership interest in the business.

The defendants denied any such agreement and counterclaimed for a deficit in the plaintiff's commissions and damages for soliciting clients after his resignation.

The court found the plaintiff not credible, dismissed his claims for lack of a proven contract or unjust enrichment, and also dismissed the defendants' counterclaims for the commission deficit (due to forgiveness) and lost business (due to insufficient evidence of solicitation by the plaintiff alone).

At a status hearing under Rule 48.14 of the Rules of Civil Procedure, the plaintiff was required to show cause why the action should not be dismissed for delay.

The defendants argued that the plaintiffs failed to advance the litigation diligently and that the action was a nullity due to the corporate plaintiff’s bankruptcy.

The court applied the two‑part test requiring an acceptable explanation for the delay and the absence of non‑compensable prejudice to the defendants.

Although the delay was significant, the court accepted the plaintiffs’ explanation relating to related litigation, financial constraints, and a change of counsel, and found insufficient prejudice to the defendants.

The action was permitted to proceed subject to a strict timetable, and the defendants were awarded partial indemnity costs of the status hearing.

The moving defendants sought partial summary judgment dismissing the action against a corporate affiliate and a corporate officer in a construction dispute relating to a condominium development project.

The plaintiff alleged that the officer induced breach of contract, made misrepresentations, conspired with lenders, and that the corporate affiliate was effectively the alter ego of the contractor.

The court reviewed the amended Rule 20 summary judgment framework and the Court of Appeal’s guidance in Combined Air Mechanical Services Inc. v. Flesch, particularly the limits on a master’s authority and the requirement to determine whether a full appreciation of the evidence is possible without a trial.

Although the evidentiary record against the moving defendants was weak and the legal theories faced significant obstacles, the court held that the complex factual matrix and unresolved issues relating to the main breach of contract claim prevented a proper assessment on the record.

Summary judgment was therefore refused.

The defendants brought a motion to dismiss the plaintiffs’ action for failure to comply with undertakings given during cross‑examination in a long‑running commercial dispute.

Several undertakings relating to financial records, loan documentation, tax returns, and trust information remained outstanding despite prior court orders requiring compliance.

The court found that the plaintiffs had failed to diligently comply and that the attempted responses amounted largely to non‑answers.

While dismissal of the action under Rule 60.12 of the Rules of Civil Procedure was considered, the court held that dismissal would be disproportionate at that stage.

Instead, the plaintiffs were precluded from advancing evidence at trial relating to damages allegedly sustained by two corporations or claims based on those corporate losses.

The court determined whether agreed costs arising from a successful Rule 21 determination of a question of law should be payable immediately or in the cause pending appeal.

The underlying motion, brought by the tax authority under Rule 21.01(1)(a) of the Rules of Civil Procedure, sought determination of a legal issue prior to trial.

The court held that the Rule 21 proceeding constituted a discrete proceeding capable of disposing of the action and therefore warranted immediate costs consequences.

The successful parties were awarded agreed partial indemnity costs payable forthwith rather than in the cause.

The existence of a pending appeal did not justify delaying payment of the costs.