Lise Favreau

The appellant appealed a motion judge's order dismissing his motion to add three non-LSO defendants as necessary parties to his action and to amend his pleadings to include a negligence claim against them.

The Court of Appeal upheld the motion judge's decision on three grounds: (1) the issue of whether the non-LSO defendants were necessary parties had been finally determined in prior proceedings and raising it again constituted an abuse of process; (2) the negligence claim was statute-barred under the Limitations Act, 2002, as the appellant had discovered the relevant facts by December 2020, well before the proposed amendment in June 2023; and (3) the negligence claim constituted an abuse of process as it could have been made in the original statement of claim.

The appeal was dismissed with costs awarded to the respondents.

The appellant brought an action against her former lawyers alleging breach of fiduciary duty, breach of contract, and negligence in connection with a wrongful dismissal settlement.

The appellant claimed the respondent lawyers conspired with her former employer, preferred the employer's interests, and induced her to enter into an improvident settlement.

The motion judge granted summary judgment dismissing the claim, finding no genuine issue for trial and rejecting allegations of collusion.

The Court of Appeal upheld the dismissal, finding the motion judge properly assessed whether the respondents' advice was reasonable and whether the settlement was improvident given the litigation risks.

Pine Glen Thorold Inc. appealed the dismissal of its action against Rolling Meadows Land Development Corporation and Glen Gordon.

The motion judge had struck the claim on the basis that it did not disclose reasonable causes of action.

The Court of Appeal dismissed the appeal, but on different grounds.

Rather than analyzing each individual cause of action, the court found that the claim as a whole constituted an abuse of process.

Pine Glen sought to relitigate issues that were already decided or could have been raised in prior applications between the parties, and its claim was primarily based on the respondents' conduct during the previous litigation.

The court held that absent exceptional circumstances (such as viable claims for malicious prosecution or abuse of process), parties should not be permitted to pursue civil actions based on the conduct of prior litigation.

An appeal from a Superior Court decision regarding the provability of a former employee's profit-sharing claim in the bankruptcy of a real estate development company.

The trustee disallowed the claim on the grounds that it was an equity claim and too contingent and remote.

The appeal judge allowed the appeal, finding the profit-sharing claim was a claim for unliquidated damages for breach of contract, not an equity claim, and was therefore provable.

The Court of Appeal dismissed the appeal, upholding the lower court's decision and confirming that the profit-sharing claim is a provable claim that takes priority over the limited partners' equity claims.

On January 8, 2020, Ukraine International Airlines flight PS752 was shot down by Iranian air defence missiles shortly after takeoff from Tehran, killing all 176 persons aboard.

The trial judge found that UIA breached the standard of care by failing to conduct a proper security risk assessment in accordance with ICAO 10084 (Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones).

Specifically, UIA failed to access necessary and available information, failed to conduct a hazard identification and safety assessment, and failed to communicate with the flight commander before departure.

As a result, UIA's liability under the Montreal Convention was unlimited rather than capped at approximately $235,000 per passenger.

The appellate court dismissed UIA's appeal, finding no palpable and overriding error in the trial judge's findings of fact or mixed fact and law.

The appellant, Josiah Lowe, appealed his sentence of three years' imprisonment for three counts of robbery, possession of property obtained by crime over $5,000, and wearing a disguise with intent.

He argued that the sentencing judge misapplied the law regarding anti-Black racism, erred by prioritizing denunciation and deterrence, and erred in crediting his bail conditions.

The Court of Appeal found no error in the sentencing judge’s application of the law or principles and dismissed the appeal.

The Court of Appeal for Ontario allowed Adam Chiarelli’s appeal from his conviction for possession of cocaine for the purpose of trafficking.

The court found that the trial judge erred by failing to provide a limiting instruction regarding inadmissible opinion evidence given by police officers about items found in the vehicle being “consistent with drug trafficking.” The court dismissed other grounds of appeal, including the lack of a Vetrovec caution and the reasonableness of the verdict, but concluded the error was not minor and the curative proviso did not apply.

A new trial was ordered.

The Court of Appeal for Ontario dismissed the appeal of Lori Gallant, who sought a court order to fix the rental rate for a renewed term of a commercial lease with Sherril Johnson and Fitzroy Johnson.

The court held that the lease’s renewal clause was merely an agreement to agree, providing no basis for the court to set a rental rate or imply a method for doing so.

The court also found no breach of good faith by the respondents in the rental negotiations.

The respondents were awarded costs.

The Court of Appeal for Ontario dismissed Mario Oliveira Jr.'s application to review a motion judge's order refusing to extend the time to perfect his appeal.

The court found that while Mr. Oliveira had a genuine intention to perfect his appeal and was delayed by inaccurate information from court staff, the appeal itself was so devoid of merit that it was not in the interests of justice to grant an extension.

The court agreed with the motion judge that the underlying claim was abusive and vexatious, and rejected the argument that the motion judge failed to account for Mr. Oliveira's self-represented status.

Costs of $1,500 were awarded against Mr. Oliveira Jr.

The Court of Appeal for Ontario dismissed the appeal by the defendants, Danping Wang (also known as Linda Wang) and Shi Gang Ni (also known as Simon Ni), from a judgment awarding $555,000 to the respondent, Jamshid Nayyer, for breach of contract.

The trial judge found that the parties had a valid oral agreement entitling the respondent to a 20% interest in certain properties, which was later exchanged for a full interest in a condominium.

The trial judge’s findings on credibility and the evidence were upheld, and the appeal was dismissed with costs.

The Court of Appeal for Ontario allowed in part the appeal of Westmount-Keele Limited in a solicitor’s negligence action against Nicholas C. Tibollo and his professional corporation.

The court found that the trial judge erred in declining to award damages for certain legal fees and elevator repairs, and varied the judgment to include these amounts.

The court otherwise upheld the trial judge’s findings regarding lost opportunity damages, property taxes, and other claims, finding no palpable and overriding error.

The appeal was allowed in part, and costs were awarded to the appellant.

The Court of Appeal for Ontario dismissed a motion by Jonny’s Antiques Ltd. for a stay pending appeal in a mortgage enforcement dispute with 2642948 Ontario Inc. The court found that the grounds of appeal were weak, there was no evidence of irreparable harm, and the balance of convenience favoured the respondent.

The court also declined to award costs to 2642948 Ontario Inc. due to its conduct in accelerating the closing of the property sale without notice to Jonny’s Antiques Ltd.

The Court of Appeal for Ontario dismissed the appeal of Robert and Catherine Hurst, who challenged their removal as estate trustees of the Estate of Ruth Eileen Stevens MacBeth.

The court upheld the motion judge’s discretionary decisions to deny an adjournment, remove the Hursts as trustees, and order a $50,000 holdback from the estate.

The court found no error in the motion judge’s application of the legal tests and awarded costs against the appellants personally, concluding the appeal was unnecessary and not in the interests of the estate.

G.E.S. Construction Limited appealed the dismissal of its motion seeking a declaration that Lloyd’s Underwriters had a duty to defend and indemnify it under a 2015 insurance policy.

The Court of Appeal upheld the motion judge’s decision, finding no waiver or estoppel by Lloyd’s and no bad faith in its conduct.

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

The Court of Appeal for Ontario dismissed Aliamisse O. Mundulai’s motion for a panel review of a decision denying his request for an extension of time to seek leave to appeal from a Divisional Court decision.

The Divisional Court had dismissed his application for judicial review of a Law Society Tribunal Appeal Division decision denying his readmission to the Ontario Bar.

The Court of Appeal found no error in the motion judge’s decision, noting the lack of merit in the proposed appeal and emphasizing that leave to appeal was required.

The application was dismissed and costs of $2,000 were awarded to the respondent.

The Court of Appeal for Ontario dismissed the appeal from a judgment enforcing a settlement agreement in the context of a pending arbitration.

The appellants failed to pay the agreed amount by the deadline, triggering a penalty clause.

The court found no error in the application judge’s decision to proceed by application rather than action, in the finding that the respondents had not breached their obligations of good faith, or in the enforcement of the penalty clause.

The appeal was dismissed and costs awarded to the respondents.

The Court of Appeal for Ontario dismissed Arsenije Lojovic’s conviction appeal but allowed his sentence appeal, reducing his sentence from 10 years to 8 years (less pre-trial custody).

The court found that the trial judge erred by treating Lojovic’s bipolar disorder as an aggravating factor rather than a mitigating one.

The decision reviews the proper approach to NCR (not criminally responsible) assessments and the role of mental illness in sentencing, emphasizing that mental health conditions can reduce moral blameworthiness and the weight of deterrence and denunciation.

The Court of Appeal for Ontario dismissed the appeal of Shahin Songhorigakien from a summary judgment ordering her to pay $500,000 plus interest and costs to the Bank of Montreal under a personal guarantee for a corporate overdraft facility.

The court found no error in the motion judge’s conclusion that there was no genuine issue requiring trial, that the bank owed no special duty to Songhorigakien, and that her non est factum defence had no air of reality.

The court also rejected arguments of procedural unfairness.

The Court of Appeal for Ontario allowed both the appeal and cross-appeal, setting aside the case conference judge’s order in its entirety.

The court found that the case conference judge exceeded his authority under the Rules of Civil Procedure and failed to provide adequate reasons or an evidentiary record to support his decision regarding the existence and terms of a settlement.

The lack of intelligible reasons and evidentiary basis precluded meaningful appellate review.

The Court of Appeal for Ontario dismissed the appeal by Kurt Ashley Ritchie from an order upholding, with modification, a separation agreement between himself and Jessica Bortoleti De Oliveira.

The court found no error in the trial judge’s adjustment of child support or in the costs award, which reflected divided success and the parties’ conduct.

The court emphasized the ongoing obligation for both parties to exchange financial information annually and confirmed that no costs would be awarded for the appeal.