Mark A. Wiffen

Cattle farmers sought leave to proceed with claims against the Crown and Animal Welfare Services officers for misfeasance in public office, breach of duty of care, abuse of process, intentional interference with economic relations, and defamation arising from the removal of approximately half their herd.

The court granted leave for misfeasance in public office, breach of duty of care, and abuse of process, finding sufficient evidence of bad faith and recklessness based on the Animal Care Review Board's findings that the removal process failed to comply with statutory standards and was not necessary to relieve animal distress.

Leave was denied for intentional interference with economic relations due to inadequate pleading, and leave was not required for defamation.

The moving parties brought a motion for leave to appeal a decision of Centa J. The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay agreed costs of $4,000 to the responding party.

The applicant brought an application for judicial review seeking an order requiring the respondent ministries to conduct an environmental assessment for the redevelopment of the West Island at Ontario Place.

Shortly after the application was commenced, the provincial government passed the Rebuilding Ontario Place Act, 2023, which explicitly exempted the Ontario Place lands from the Environmental Assessment Act.

The respondents brought a motion to quash the application.

The Divisional Court granted the motion, finding it was plain and obvious the application could not succeed given the statutory exemption.

The court also declined to exercise its discretion to hear the moot issue of whether the government's conduct prior to the new legislation was unlawful.

No costs were awarded as the applicant was a public interest litigant.

The respondents moved to quash an application for judicial review brought by Ontario Place for All Inc. regarding the redevelopment of Ontario Place's West Island.

The respondents argued that the newly enacted Rebuilding Ontario Place Act, 2023 exempted the project from the Environmental Assessment Act, making the application moot or bound to fail.

The single judge of the Divisional Court declined to quash the application, finding that the issues raised significant public law concerns regarding governance and environmental protection that warranted consideration by a full panel of the Divisional Court.

The applicant sought judicial review of a decision by the respondent Ministries disqualifying its bid for a government debt collection contract.

The applicant was disqualified at the evaluation stage for failing to demonstrate it was currently registered under the Collection and Debt Settlement Services Act.

The Divisional Court dismissed the application, finding that the procurement dispute was commercial in nature and not subject to judicial review.

In the alternative, the Court held that the Ministries' decision to disqualify the bid based on an expired registration certificate was reasonable and that the process was procedurally fair.

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

The moving party, a professional engineer, sought a stay of discipline proceedings against him, arguing that a 4.5-year delay in the Association's investigation constituted an abuse of process.

The charges arose from a 2017 workplace fatality involving a collapsed arch.

Applying the Supreme Court's framework in Abrametz, the Discipline Committee majority found the delay was inordinate given the investigation's lack of complexity.

However, the Committee unanimously concluded that the moving party failed to establish significant hearing or personal prejudice caused by the delay.

The motion for a stay was dismissed, as the public interest in having the allegations heard on their merits outweighed any harm caused by the delay.

The moving defendants brought motions to enforce settlement agreements dismissing two construction-related actions without costs.

The plaintiff opposed the motions, arguing the settlements were entered into due to misrepresentations, unconscionability, and misapprehension, and brought a cross-motion to join the actions to separate ongoing litigation.

The court found that a valid settlement was reached and rejected the plaintiff's arguments, noting that the alleged misrepresentations were based on double hearsay and the plaintiff was represented by capable counsel.

The court granted the motions to enforce the settlements and dismissed the cross-motion.

The applicants brought a motion for leave to deliver a further affidavit in their application seeking reinstatement of their membership in the respondent centre.

The applicants had already cross-examined the respondent's deponent but sought to introduce evidence addressing a new ground for termination allegedly raised during the cross-examination.

The court granted leave, finding the evidence potentially relevant to the applicants' claim that false information was provided to the membership, that there was no non-compensable prejudice to the respondent, and that there was a reasonable explanation for the evidence not being included initially.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The Catalyst Parties brought actions for defamation, injurious falsehood, and conspiracy against various defendants, including media organizations, journalists, short sellers, and former borrowers, arising from the publication of a Wall Street Journal article and whistleblower complaints to the Ontario Securities Commission.

The defendants brought motions to dismiss the actions under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The Catalyst Parties also brought a motion to dismiss four discrete defamation claims in a counterclaim brought by the West Face Parties.

The court granted the defendants' motions, dismissing the Defamation Action and the Wolfpack Action, finding that the expressions related to matters of public interest and that the public interest in protecting the expressions outweighed the public interest in allowing the actions to proceed, particularly given the Catalyst Parties' history of aggressive litigation and ethically dubious investigative tactics.

The court dismissed the Catalyst Parties' motion regarding the counterclaim, holding that partial anti-SLAPP motions are not permitted and that the counterclaim had substantial merit.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.

The defendant, David Franklin, brought a motion under s. 137.1 of the Courts of Justice Act (anti-SLAPP legislation) to dismiss an action brought against him by the Mizzi family.

The Mizzi family sued Franklin, his client Michael Cavanagh, and others for intrusion upon seclusion, intentional infliction of mental and emotional suffering, and extortion, alleging that Franklin and Cavanagh hacked emails, created a defamatory website, and made threats.

Franklin argued the action arose from his public comments on a Global News broadcast about a financial scandal, which he contended was a matter of public interest.

The court found that while Franklin's comments were indeed an expression relating to a matter of public interest, the Mizzi family's action did not "arise from" that expression.

Instead, the court determined the action genuinely arose from the alleged intrusion on seclusion and extortion that occurred independently of and prior to the news broadcast.

Consequently, the court dismissed Franklin's motion to dismiss the action, allowing the Mizzi family's claims to proceed to trial on their merits.

The Owners (Jeffrey and Rachel Nagashima) brought a motion under s. 44(2) of the Construction Act to vacate Cancore Production Ltd.'s construction lien against their property by posting reduced security, specifically the basic statutory holdback of $38,000.

Cancore opposed any reduction.

The court dismissed the Owners' motion, finding they failed to convincingly demonstrate that their maximum liability to Cancore would be less than the full lien amount.

The Master found triable issues regarding the prime contract price, the extent of agreed extras, and the validity of claimed set-offs for incomplete and deficient work, concluding that the Owners had not met their evidentiary onus to justify a reduction in security.

The plaintiff brought a motion to strike the defendant's statement of defence and counterclaim for failing to comply with trial directions to deliver affidavits for evidence in chief.

The defendant, who was self-represented after his counsel was removed, brought a motion to adjourn the trial to retain new counsel.

The court found the defendant's non-compliance was deliberate, part of a delay strategy, and showed a profound lack of interest in the proceedings.

Applying the test for striking pleadings, the court struck the defendant's set-off and counterclaim but allowed the defence to stand so the defendant could cross-examine the plaintiff's witnesses.

The motion to adjourn was dismissed.

The appellant land developer brought a $6 million breach of contract action against a not-for-profit environmental association and its members, alleging that the association's president had breached a settlement agreement by testifying before the Ontario Municipal Board regarding the ecological impact of the appellant's proposed subdivision development.

The respondents brought a pre-trial motion under s. 137.1 of the Courts of Justice Act to dismiss the action as a strategic lawsuit against public participation.

The Court unanimously dismissed the appeal, holding that the respondents met the threshold burden under s. 137.1(3) and that the appellant failed to satisfy either the merits-based hurdle under s. 137.1(4)(a) or the public interest weighing exercise under s. 137.1(4)(b).

The Court provided comprehensive guidance on the proper interpretation and application of Ontario's anti-SLAPP framework, clarifying the standards of 'satisfies,' 'arises from,' 'substantial merit,' and the public interest weighing exercise.

The decision affirms that freedom of expression and public participation in democratic processes are fundamental values that the anti-SLAPP legislation was enacted to protect.

The defendant moved to strike the plaintiff's statement of claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action.

The plaintiff alleged breach of contract, breach of confidence, conspiracy, inducing breach of contract, intentional interference with economic relations, and unjust enrichment arising from the defendant allegedly sharing the plaintiff's confidential pricing information with a competing bidder.

The court dismissed the motion to strike for most claims, finding they met the low threshold of disclosing a 'germ or scintilla' of a cause of action.

However, the court struck the claim for intentional interference with economic relations, as the pleading failed to allege an unlawful act against a third party, but granted the plaintiff leave to amend.

A self-represented appellant appealed his conviction for speeding (107 km/h in a 70 km/h zone) after two trials and an unsuccessful appeal to the Provincial Offences Appeal Court.

The Court of Appeal allowed the appeal on two substantive grounds: (1) the trial justice misapplied the W.(D.) principles by choosing between competing versions of evidence rather than determining whether guilt was proven beyond a reasonable doubt, and (2) the trial justice erred in restricting the appellant's cross-examination of the officer on prior inconsistent statements without requiring a transcript.

The court quashed the conviction and ordered a new trial, noting that the prosecutor should consider whether subjecting the appellant to a third trial on a speeding ticket serves the interests of justice.

The plaintiff mother brought a motion for summary judgment against her defendant son for an outstanding loan debt, specifically seeking to enforce an alleged agreement to increase the interest rate on a portion of the debt from 5% to 10%.

The court reviewed email correspondence between the parties and a third-party lender.

The court found there was no meeting of the minds, as the son agreed to the higher interest rate only in exchange for delayed payment terms, which the mother explicitly rejected.

Consequently, the motion for the increased interest rate was dismissed, and the original 5% rate remained applicable.