Lynne C. Leitch

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for damages arising from a motorcycle accident allegedly caused by an unidentified vehicle.

The insurer argued the claim was statute-barred due to the plaintiff's failure to report the accident to the police or the insurer within the prescribed time limits, and that the accident could not have occurred as described.

The court dismissed the motion, finding genuine issues requiring a trial regarding whether the plaintiff is entitled to relief from forfeiture, whether the identity of the vehicle was ascertainable with due diligence, and whether the plaintiff is entitled to OPCF 44R coverage.

The respondent was successful on a motion to change, reducing his spousal support obligation from $900 to $725 per month.

He sought costs of $18,000 on an all-inclusive basis.

The applicant, who was self-represented and impecunious, argued that each party should bear their own costs.

The court considered the factors under Rule 24(11), including the applicant's financial circumstances, the extent of the variation, and the respondent's reasonable offer to settle.

The court awarded the respondent costs fixed at $5,000, to be set off against his outstanding spousal support arrears.

The plaintiff, a Mr. Sub franchisee, sought to certify a class action against Maple Leaf Foods Inc. and Maple Leaf Consumer Foods Inc. following a listeriosis outbreak in 2008 linked to the defendants' ready-to-eat (RTE) meats, which were exclusively supplied to Mr. Sub franchisees.

The plaintiff alleged negligence, including breach of duty to provide fit products, duty to warn, and negligent misrepresentation, resulting in economic losses such as lost sales, profits, and goodwill.

The defendants challenged the existence of a cause of action, particularly regarding foreseeability, proximity, and policy considerations for economic loss claims.

The court found that the plaintiff had satisfied all five certification criteria under the Class Proceedings Act, 1992, including disclosing a viable cause of action for economic losses based on negligent supply of dangerous goods and negligent misrepresentation.

The court rejected the defendants' arguments that the claim was essentially for breach of continuous supply or that policy concerns regarding indeterminate liability should negate a duty of care, noting the close relationship between the parties and the public danger posed by the contaminated product.

The motion to certify the class action was granted.

The plaintiff sought leave of the court to bring its motion for certification of a class proceeding and for its appointment as representative plaintiff, pursuant to s. 2(3)(b) of the Class Proceedings Act, 1992, after the statutory 90-day period had expired.

The defendants opposed the motion, arguing prejudice due to the delay.

The court granted leave, finding that the 90-day rule is frequently not strictly observed, there was no evidence of actual prejudice to the defendants (who had preserved documents and were subject to prior investigations), and the court's consent to a timetable for the certification motion implied leave.

The court emphasized that denying leave would be unjust given the circumstances and the defendants' late challenge to the plaintiff's right to bring the motion.

The appellants appealed a summary judgment awarding damages for unpaid invoices and declaring a breach of trust under the Construction Lien Act.

The Divisional Court raised a jurisdictional issue, noting that the proceeding primarily involved non-statutory claims for goods sold and delivered, with the trust claim being ancillary.

The court held that section 71 of the Construction Lien Act did not confer jurisdiction over the entire proceeding, which was properly appealable to the Court of Appeal under section 6 of the Courts of Justice Act.

The court ordered the appeal transferred to the Court of Appeal.

The City of Hamilton appealed a decision of the Ontario Energy Board denying a request to update the load profile for the street lighting class to reflect reductions from an LED conversion program.

The City argued the Board failed to provide adequate reasons and failed to implement provincial energy conservation policies.

The Divisional Court dismissed the appeal, finding that the Board's refusal to selectively update load profiles without data for all classes was reasonable and grounded in fairness, and did not conflict with provincial conservation policies.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld a College finding that he breached the Advertising Regulation.

The applicant was listed as the 'Associate Medical Director' of a clinic that offered a Groupon deal for Botox, though he only provided retinal surgery and was unaware of the ad.

The Divisional Court dismissed the application, finding it reasonable for the Board to conclude that by allowing his name to be associated with the clinic in a directorial capacity, he permitted himself to be associated with the advertising.

The applicant sought judicial review of a Grievance Settlement Board decision dismissing a grievance that sought to hold the employer vicariously liable for a fellow employee's tort of intrusion upon seclusion.

The fellow employee had used the employer's equipment to access the grievor's Employment Insurance records.

The Divisional Court held that the applicable standard of review was reasonableness.

Applying the principles from Bazley v Curry, the court found the Tribunal's conclusion that the wrongful act was not sufficiently related to conduct authorized by the employer to be reasonable.

The application for judicial review was dismissed.

Middlesex Condominium Corporation No. 195 (MCC 195) brought a motion for partial summary judgment against Sunbelt Business Centres (Canada) Inc. (Sunbelt) regarding liability for hydro accounts and window replacement costs for commercial condominium units.

The court dismissed Sunbelt's limitation period defense, finding that the condominium's declaration was not an "agreement" to vary limitation periods and that MCC 195's claim was timely.

The court found Sunbelt liable for the hydro accounts servicing the commercial units, rejecting Sunbelt's interpretation that "separately metered for each unit" required one meter per legal unit.

However, the court found MCC 195 responsible for the cost of window replacement, determining that the windows were common elements and not exclusive use common elements, thus falling under the corporation's maintenance obligation.

The defendant law firm brought a motion to dismiss the plaintiff's 2006 action for delay under Rule 24.01.

The action involved allegations of knowing assistance in a breach of fiduciary duty.

The court reviewed the litigation history, noting periods of delay but also cooperative efforts between counsel and interlocutory motions.

The court found that the delay was not inordinate or inexcusable, and that the defendant failed to establish a substantial risk that a fair trial was no longer possible, as discoveries on liability were complete and documentary evidence was preserved.

The motion was dismissed.

The plaintiffs brought a motion to restore a personal injury action to the trial list, discontinue the Family Law Act claims of two siblings, and remove counsel of record for the parents.

The defendants consented to the discontinuance but sought a condition allowing them to examine the siblings for discovery, arguing their evidence was necessary to understand the injured plaintiff's pre-accident condition given his traumatic brain injury and young age at the time of the accident.

The court granted the discontinuance on the condition that the defendants may examine the siblings for discovery, distinguishing prior case law due to the unique circumstances and lack of alternative sources for the information.

The court also granted the order removing counsel of record for the parents.

The plaintiff brought a motion to restore his wrongful arrest and negligent investigation action to the trial list after it was struck due to his lack of counsel.

The court found that because there was no impending dismissal under the amended Rule 48.14, the strict Nissar test did not apply.

The court concluded the action was ready for trial, the delay was reasonably explained by the plaintiff's efforts to retain new counsel, and the defendants would suffer no non-compensable prejudice.

The motion was granted and costs of $3,000 were awarded to the plaintiff.

The representative plaintiff in a securities class action sought court approval of an $11 million settlement agreement, a plan of distribution, and class counsel fees.

The action alleged that the defendants misrepresented the development costs of a mining project.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the significant litigation risks, including proving liability and overcoming statutory liability caps under the Securities Act.

The court also approved the plan of distribution, the appointment of the claims administrator, and class counsel's fee request of $2.75 million (25% of the settlement) plus disbursements, finding them fair and reasonable given the results achieved and risks assumed.

The parties sought costs following a certification motion (where the plaintiffs were successful) and a jurisdiction motion (where the defendants were successful).

The plaintiffs initially sought over $600,000 but reduced their claim to $268,301.22, while the remaining defendants sought $228,575.05.

The court found the jurisdiction motion was highly complex and awarded the defendants their full requested amount.

For the certification motion, the court noted that class counsel had already been substantially compensated through prior settlements with other defendants.

The court awarded the plaintiffs $228,575.05 for the certification motion and ordered the two costs awards to be offset against each other.

The plaintiffs in a price-fixing class action regarding air freight shipping services brought a motion for approval of a notice of hearing regarding a settlement with one of the defendants.

The plaintiffs also sought orders requiring non-settling defendants and a non-party association to produce customer information, and authorizing freight forwarders to voluntarily disclose customer information, to facilitate the notice and claims process.

The court approved the notice plan and granted the production orders, finding that section 12 of the Class Proceedings Act satisfies the requirements for disclosure under section 7(3)(c) of the Personal Information Protection and Electronic Documents Act.

The plaintiffs purchased a property that had been previously owned and remediated by the defendant, Chrysler.

The plaintiffs sued Chrysler for negligence and negligent misrepresentation, alleging inadequate remediation and reliance on public statements made by Chrysler about the clean-up.

Chrysler moved for summary judgment.

The court granted the motion, finding that caveat emptor applied, Chrysler owed no duty of care to a subsequent purchaser, and there was no special relationship or reasonable reliance to support a claim for negligent misrepresentation.

The respondent brought a motion seeking a stay of the applicant’s Ontario proceeding and an order requiring the children’s return to Nova Scotia, arguing that the parties and children had relocated there and that Ontario lacked jurisdiction.

The applicant opposed the motion and sought temporary custody and a declaration that Ontario had jurisdiction.

The court found that the applicant did not satisfy the "ordinary residence" test under the Divorce Act and that the children were not habitually resident in Ontario within the meaning of the Children’s Law Reform Act because the respondent had not consented to their return.

However, jurisdiction was properly exercised under s. 22(1)(b) of the CLRA because the children were physically present in Ontario, substantial evidence regarding their best interests existed there, and the balance of convenience favoured Ontario.

The respondent’s motion was dismissed and the applicant was granted temporary custody and primary care of the children.

The plaintiff brought a motion seeking leave to amend the statement of claim to add a declaration that she was a victim of crime under the Victims’ Bill of Rights, 1995 and to obtain substantial indemnity costs against the defendant who had pleaded guilty to dangerous driving.

The motion also sought summary judgment declaring the plaintiff a victim of crime and fixing costs payable by the Motor Vehicle Accident Claims Fund.

The court held that the proposed amendment constituted a new cause of action advanced 13 years after the accident and after the limitation period had expired, creating presumed non‑compensable prejudice to the defendant.

The court further found the evidentiary record insufficient to justify enhanced costs under the Victims’ Bill of Rights and inadequate to support the requested cost award.

The motion was therefore dismissed.

The representative plaintiff in a proposed national class action alleged that multiple manufacturers conspired to fix prices of polyurethane foam and carpet underlay products.

The plaintiff brought a motion seeking court approval of several negotiated settlement agreements with numerous defendants totaling approximately $29.28 million for the benefit of the class, along with cooperation provisions to assist claims against remaining defendants.

An objector argued that the settlements should not be approved until a distribution protocol and damages analysis were finalized.

The court held that settlement approval can properly occur before approval of a distribution protocol and that the negotiated settlements were fair, reasonable, and in the best interests of the class given the complexity, litigation risk, and absence of meaningful objections.

The settlements were therefore approved.

The appellant appealed a decision dismissing its motion to compel the respondent to seek answers and documents from its non-party insurers regarding their participation in a class action settlement.

The Divisional Court dismissed the appeal, finding that the request was overbroad and tantamount to requiring an affidavit of documents from a non-party.

The court held that the proper procedure for seeking such extensive production from non-parties is a motion under Rule 30.10 of the Rules of Civil Procedure.