Marc Lemieux

Following the dismissal of the applicant's motion against the respondent, the respondent sought substantial indemnity costs.

The court found that the applicant's conduct in pursuing a disclosure motion based on baseless allegations of misrepresentation under oath, and persisting despite offers to settle on a without-costs basis, was reprehensible.

The court awarded the respondent substantial indemnity costs fixed at $37,000.

The moving party brought a motion seeking to compel the responding party to answer discovery questions and produce income tax and bank records, alleging that newly discovered evidence of dividend payments undermined a prior decision sustaining discovery refusals.

The court dismissed the motion on the basis of issue estoppel, finding that the moving party's abandonment of its earlier appeal rendered the prior associate justice's decision final.

The court held that the new evidence of co-defendant dividend payments did not demonstrate that the responding party had received income from co-defendants or had misrepresented facts at discovery.

Costs submissions were reserved.

The defendant, Randy Gliddon, brought a motion to set aside an ex parte order that permitted the plaintiffs to register a Certificate of Pending Litigation (CPL) against a property.

The defendant argued that the CPL was obtained without full and fair disclosure and that there was no triable issue.

The court found no material non-disclosure, noting that the plaintiffs' reliance on an alleged oral trust agreement between the deceased and the defendant, as evidenced by a lawyer's email, was sufficient to raise a triable issue regarding the severance of joint tenancy.

The motion to set aside the CPL order was dismissed, and costs were awarded to the plaintiffs.

The court approved a $350,000 settlement for a plaintiff with a cognitive disability arising from a motor vehicle accident.

The primary issue for determination was whether the plaintiff's $200,000 share of the settlement should be managed via a structured settlement or a "Henson Trust." The court approved the legal fees and disbursements but indicated a preliminary view that a structured settlement, likely for 15 years, was mandatory under O. Reg. 461/96, s. 6(1), given the plaintiff's disability and the settlement amount, reserving final decision pending further submissions from counsel.

The Toronto Transit Commission (TTC) appealed an Associate Justice's decision regarding refusals motions during discovery in two related actions.

The TTC alleged conspiracy, breach of fiduciary duty, and unjust enrichment against Ronald Howard Spaeth, Specbilt Enterprises Inc., and Michael Hickey, claiming they manipulated procurement processes and overcharged for parts.

Mr. Hickey also sued TTC for wrongful dismissal.

The appeal concerned the production of financial records, bank records, and documents related to the relationship between Mr. Spaeth and Prostuff Group.

The court allowed the appeal in part, finding the Associate Justice erred in principle by overly limiting the scope of relevant documents for production, particularly regarding financial records and supplier transactions, and the relationship between Mr. Spaeth and Prostuff Group, but upheld the refusal for general payroll records.

Two consolidated appeals concerning the enforceability of liability waivers executed by ski resort patrons.

The central issue was whether the Consumer Protection Act (CPA) or the Occupiers' Liability Act (OLA) governs the relationship between ski resorts and patrons who purchased ski tickets and executed waivers as a condition of entry.

The lower courts held that the CPA applied and voided the waivers.

The Court of Appeal held that the OLA and CPA conflict, and that the more specific OLA provisions prevail over the general CPA provisions.

The court allowed the appeals and held that the waivers were valid and enforceable.

The defendants sought leave to appeal an order dismissing their motion for partial summary judgment and ordering document production.

The leave motion was dismissed, and the court invited written submissions on costs.

The court awarded costs to the successful responding party, finding the requested amount of $6,535.95 to be proportional and reasonable.

The moving party was ordered to pay the costs forthwith.

This endorsement addresses costs, pre-judgment interest, and collateral benefit deductions following a three-week jury trial in a motor vehicle accident case.

The court determined pre-judgment interest for Meaghan Dunk's general damage award and denied the defendants' request for collateral benefit deductions from her future health care award, emphasizing the strict onus on defendants to prove overlap with statutory accident benefits.

The court also fixed Meaghan Dunk's costs at a substantial indemnity rate from the date of her Rule 49 offer, and partial indemnity prior, and adjusted her disbursements.

For Shelby Dunk, whose claim settled, the court fixed her disbursements.

The plaintiff, David W. Ernewein, brought motions for production of documents and leave to amend his Statement of Claim, while the defendant, Honda of Canada Mfg., brought a motion for summary judgment to dismiss the plaintiff's retroactive overtime pay claim as statute-barred.

The court dismissed Honda's summary judgment motion, finding a genuine issue for trial regarding the discoverability of the overtime claim and the application of the Limitations Act.

The court granted Ernewein's motions for production of the termination review document (finding no solicitor-client or litigation privilege), material facts of witness statements, and payroll records, and also granted leave to amend the Statement of Claim to plead discoverability and fraudulent concealment.

The plaintiff brought a special case under Rule 22 to determine the applicability of the Consumer Protection Act, 2002 (CPA) to a ski package transaction and the enforceability of liability waivers.

The court found that the CPA applies broadly to consumer transactions for services, including ski packages, and that waivers purporting to negate the implied warranty of reasonably acceptable quality services are presumptively void under s. 9(3) of the CPA.

While such terms are severable under s. 9(4), the court retains equitable jurisdiction under s. 93(2) to bind the consumer to them, with the onus on the supplier to prove it would be inequitable not to.

The court also determined that the Occupiers Liability Act (OLA) does not supersede the CPA in this context, meaning the occupier is not "free" to restrict liability for services where the CPA applies.

In a costs decision following an unsuccessful summary judgment motion in a catastrophic personal injury action, the court declined to reserve costs to the trial judge.

Applying the usual principle that costs follow the cause and the discretionary factors under Rule 57, the court held there was no divided success and no basis to depart from the ordinary rule.

The moving defendant was ordered to pay partial indemnity costs to both responding parties, with modest reductions to claimed time and an additional amount for the cost-fixing submissions.

The plaintiff sought leave to appeal an order dismissing her motion for leave to bring a partial summary judgment motion on liability and contributory negligence after the action had been set down for trial.

The Divisional Court dismissed the motion for leave to appeal, finding that the motions judge correctly applied the test under Rule 48.04 and that there was no conflicting decision or reason to doubt the correctness of the order.

The court agreed that a summary judgment motion would not provide a proportionate, more expeditious, or less expensive means to achieve a just result than a trial.

The plaintiff, injured while delivering pizza when interacting with the defendants’ dog, sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a motion for summary judgment on liability and contributory negligence after the action had been set down for trial.

The court held that summary judgment is only available where there is no genuine issue requiring a trial with respect to a claim or defence and that the plaintiff’s request effectively sought to bifurcate liability and damages without the defendants’ consent under Rule 6.1.01.

The court found the proposed motion would not provide a proportionate, more expeditious, or less expensive means to resolve the dispute, particularly given that evidence regarding the incident would need to be revisited at trial on damages.

Leave was therefore refused and the motion dismissed.

Costs were awarded to the defendants on a partial indemnity basis.