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.

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 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 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.

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.

This is a costs endorsement on appeal from a Superior Court of Justice order.

The appellants appealed a decision and the Court of Appeal addressed the application of cost presumptions under the Court of Justice Act.

The court held that the statutory cost presumptions in s. 137.1(7) and (8) do not apply on appeal, as the statutory language does not expressly refer to costs on appeals.

However, the court exercised its discretion to apply the presumption for the motion costs and awarded the appellants costs on a full indemnity basis for the motion and on a partial indemnity basis for the appeal.

The plaintiff sought a declaration of beneficial ownership and transfer of title for a property, or alternatively, damages for unjust enrichment, claiming a written lease and a purchase agreement.

The defendants denied these claims, asserting the documents were fraudulently prepared by the plaintiff and that she was merely a tenant under a verbal agreement.

The court found the plaintiff's evidence lacked credibility and reliability, concluding that the documents supporting her claims were fraudulently created by her.

Both claims were dismissed.

The defendant brought a motion under section 137.1 of the Courts of Justice Act to dismiss a breach of contract action.

The plaintiff alleged that the defendant breached a settlement agreement by giving testimony before the Ontario Municipal Board regarding the environmental impact of the plaintiff's proposed development.

The motion judge dismissed the motion, finding that although the testimony constituted expression relating to a matter of public interest, the plaintiff had satisfied the merits and public interest hurdles under section 137.1(4).

The Court of Appeal allowed the appeal, holding that the plaintiff failed to meet its burden under section 137.1(4)(a) regarding substantial merit and that the motion judge erred in interpreting "substantial merit" as referring to the seriousness of the subject matter rather than the potential merits of the claim.

The Court also found insufficient evidence of damages to satisfy the public interest balancing under section 137.1(4)(b).

The applicant sought leave to appeal a Provincial Offences Appeal Court decision dismissing his appeal from a conviction for speeding.

The applicant was charged with speeding on Highway 2 in the Region of Durham, clocked at 107 km/h in a 70 km/h zone.

He was convicted at trial and again at a retrial after his first conviction was overturned due to a misapplication of the rule in R. v. W.(D.).

The motion judge granted leave to appeal on three grounds: (1) misapplication of the W.(D.) rule by the Justice of the Peace; (2) improper restriction of cross-examination regarding prior inconsistent testimony; and (3) failure to provide adequate assistance to a self-represented accused.

The appellant, Sikh Spiritual Centre Toronto, appealed a motion judge's decision refusing to set aside a consent order dated February 4, 2016 that enforced a settlement agreement between three not-for-profit charitable corporations operating Sikh temples.

The settlement concerned repayment of loaned monies.

The appellant argued the settlement was entered into without proper authority and was improvident.

The motion judge found the Director who authorized the settlement had proper authority from the Board of Directors and that the settlement was reasonable.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding errors and declining to interfere with the discretionary costs award.

Three injured workers appealed convictions or acquittal reversals under section 149(2) of the Workplace Safety and Insurance Act, 1997, which makes it an offence to wilfully fail to inform the Workplace Safety and Insurance Board of a material change in circumstances affecting entitlement to benefits.

The Court of Appeal clarified the mens rea requirement for this offence, holding that the Crown must prove the accused knew of a material change, intended not to inform the Board, and either intended to receive unentitled benefits or foresaw such receipt as substantially certain.

The court restored one acquittal and ordered new trials for two convictions.

The appellant appealed a trial judgment dismissing her claim for wrongful denial of a full-time position at a care centre.

The respondents brought motions for security for costs and access conditions to trial exhibits.

The court granted the appellant access to trial exhibits at her cost and in the presence of respondent's counsel.

The court also ordered security for costs of $20,000, finding the appeal frivolous and vexatious based on the appellant's conduct and insufficient evidence to challenge the trial judge's findings on both the limitation period and merits.

The respondents were awarded costs of $2,500 for their motion.

Trenchline Construction Inc. (TCI) brought a claim for $449,862.61 in "stand-by charges" against Trisura Guarantee Insurance Company (under a Labour & Material Payment Bond) and Unimac-United Management Corp. and Metrolinx (under a construction lien).

The court found that while TCI had a contractual entitlement to claim standby costs under the incorporated CCDC General Conditions, it failed to provide sufficient corroborating evidence to prove these costs were actually incurred.

The court also found TCI's "onsite" standby claim to be an attempt to inflate the claim, significantly detracting from the credibility of its principal witness.

Consequently, TCI's standby costs claim was denied in its entirety, both under the Bond and as lien rights.

The plaintiff/defendant by counterclaim, Lorne Rose Architect Inc., brought a motion for summary dismissal of the defendants'/plaintiffs' by counterclaim's counterclaim.

The counterclaim alleged breach of contract and negligence regarding architectural services, specifically failure to deliver timely drawings and inadequate coordination with engineers.

The court declined to grant summary judgment, citing the risk of duplicative proceedings and inconsistent findings of fact with the main action, where the same issues were raised in defence.

The motion was dismissed, and costs were awarded to the responding parties.

The defendant, Marc Cohodes, brought a motion under s. 137.1 of the Courts of Justice Act to dismiss a libel action commenced by the plaintiff, Mark Thompson.

The alleged libel imputed fraud against Thompson during his prior employment as a junior lawyer.

The court found that the expression related to a matter of public interest.

However, the plaintiff established grounds to believe his claim had substantial merit, that the defendant had no valid defence (justification or fair comment), and that the harm suffered by the plaintiff was sufficiently serious to outweigh the public interest in protecting the expression.

The motion to dismiss was denied.

The defendants brought a motion to dismiss the plaintiff's action for breach of a settlement agreement, invoking Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act).

The court found that the defendants' expression (testimony at an Ontario Municipal Board hearing regarding a land development's environmental impact) related to a matter of public interest, thereby satisfying the first part of the anti-SLAPP test.

However, the plaintiff successfully demonstrated that their action had substantial merit, the defendants had no valid defence, and the public interest in upholding the sanctity and finality of settlement agreements in litigation outweighed the public interest in protecting the defendants' expression.

Consequently, the motion to dismiss was denied, and each party was ordered to bear its own costs, given the novelty and merit of the anti-SLAPP motion.