Mark A. Wiffen

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.

The appellant brought motions to review an order denying an extension of time to appeal a stay of proceedings, and appealed a costs order.

The Court of Appeal dismissed the motions and the appeal, finding that the underlying stay order was interlocutory and that the costs orders were reasonable exercises of discretion.

The appellant appealed a trial judgment that awarded only nominal damages for unpaid inventory after the respondent closed its business.

The trial judge found the respondent breached the contract but concluded damages could not be assessed due to lack of records.

The Divisional Court allowed the appeal, finding the trial judge made a palpable and overriding error by ignoring uncontested evidence regarding the value of the inventory.

The court substituted a damages award of $65,772.42 and awarded the appellant its costs of the trial and appeal.

The appellants appealed a Master's decision refusing to add a proposed defendant to their counterclaim due to an expired limitation period.

The Divisional Court allowed the appeal, finding that the date of performance or when the oppression claim arose could not be determined from the pleadings.

The court held it was an error in principle to refuse leave to amend at this stage, without prejudice to the respondents' right to plead the Limitations Act.

The appellant appealed a decision confirming a Master's Report which found that a contract for the supply of light fixtures was between the respondent distributor and the respondent electrical contractor, rather than the appellant.

The Divisional Court dismissed the appeal, finding ample evidence to support the Master's factual findings regarding the identity of the contracting parties.

Leave to appeal the costs order was also denied.

The plaintiffs brought a motion for summary judgment seeking a mandatory injunction to require the defendants to remove a mass of concrete poured onto the plaintiffs' property during a home renovation.

The defendants, who were renovating the adjacent property, removed the plaintiffs' walkway and excavated soil without permission, and later poured concrete that encroached onto the plaintiffs' property when their temporary shoring failed.

The court found the defendants liable in trespass and rejected their defence of necessity.

The court adjourned the issue of the mandatory injunction pending a joint engineering report on the safety and feasibility of removing the concrete.

The defendants' counterclaim for delay damages was dismissed.

The appellant appealed a Small Claims Court judgment ordering him to repay a $20,000 loan, arguing the claim was statute-barred.

The Divisional Court dismissed the appeal, finding that part payments made by the appellant's company extended the limitation period for both the company and the appellant.

Furthermore, the court held that an email sent by the appellant acknowledging the debt and containing his name constituted a signed acknowledgement in writing under section 13 of the Limitations Act, 2002, which also extended the limitation period.

The defendants brought a motion for leave to appeal an order that dismissed their motion to set aside earlier trial management orders.

The defendants argued the earlier orders should be set aside due to a reasonable apprehension of institutional bias, as the judge who made them was the supervising judge for deputy small claims judges in the region, and the plaintiff's counsel was a deputy judge.

The motions judge had dismissed the motion on the basis of issue estoppel.

The court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's order because he failed to consider Rule 59.06, and concluding that the issue of institutional bias in these circumstances is a matter of general importance to the administration of justice.

The defendants brought a motion for leave to appeal an order that dismissed their motion to set aside two trial management orders.

The defendants argued that the original judge who made the trial management orders later recused himself due to a reasonable apprehension of bias, as he was the supervising judge of deputy small claims judges and the plaintiff's counsel was a deputy small claims judge.

The motions judge dismissed the motion to set aside on the basis of issue estoppel, finding the Divisional Court had already dealt with the bias issue.

The court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's order because he failed to consider Rule 59.06, and finding the issue of institutional bias to be a matter of general importance.

The appellant, a taxi driver, was convicted in absentia of careless driving following a rear-end collision.

His appeal to the Ontario Court of Justice was dismissed on the basis that he had no defence to the charge.

The Court of Appeal allowed the appeal, finding that the appellant's explanation—that the car in front of him pulled over and then suddenly pulled back into the lane—could provide a defence to the strict liability offence if believed at trial.

The conviction was set aside and a new trial was ordered.

The appellants sued the respondent for damages after allegedly finding a mouldy piece of chicken in a box of cereal.

The parties reached a settlement to dismiss the action without costs, but the appellants later attempted to resile from the agreement, claiming it was accepted in haste and under stress.

The motion judge enforced the settlement against the adult appellants.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the appellants failed to establish grounds, such as mistake or significant compromise, to justify setting aside the settlement.

The plaintiff religious corporation sought repayment of funds raised by its congregation that were used by the defendants to purchase and renovate a new, larger place of worship under a newly incorporated entity.

The plaintiff also sought repayment for a mortgage placed on its original property to fund its conversion into a funeral home.

The court dismissed both the plaintiff's claims for breach of trust, breach of fiduciary duty, and conversion, as well as the defendants' counterclaim for the value of improvements.

The court found that the fundraising and property transition were done with the knowledge and support of the original directors, and both parties ultimately benefited from the respective properties.

The appellants appealed a decision dismissing their application regarding alleged voting irregularities in a Hindu temple's By-Law vote.

The Court of Appeal upheld the application judge's finding that the appellants failed to establish an irregularity, meaning the burden of proof never shifted to the respondents.

However, the Court allowed the appeal on costs, finding the application judge misapprehended evidence when awarding substantial indemnity costs.

The costs award was reduced to partial indemnity.

The appellant building mortgagee appealed an order confirming a Master's report in a construction lien priority dispute.

The Master found that the appellant's $25,000 mortgage advance was made on November 19, 2009, giving the respondent lien claimant priority, based on a formal admission of fact that the appellant was refused leave to withdraw.

The Divisional Court dismissed the appeal, holding that the motion judge correctly applied the standard of review and that the formal admission of fact was conclusive.

Following the dismissal of an application seeking to set aside a by-law passed at a general meeting of a temple organization, the court addressed costs.

The unsuccessful applicants argued that no costs should be awarded because they were public interest litigants and alleged governance concerns within the organization.

The court rejected the characterization of the applicants as public interest litigants, finding the litigation was primarily driven by efforts to regain control of the organization rather than a broader public interest.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court determined the respondents were entitled to substantial indemnity costs.

Costs were fixed at $30,000 payable jointly and severally by the applicants.

The defendant brought a motion to enforce a settlement under Rule 49.09 of the Rules of Civil Procedure and to obtain court approval of an infant settlement under Rule 7.08.

The underlying action alleged psychological and related harm after the plaintiffs claimed to have discovered a moldy piece of chicken in a box of cereal.

The court found that a binding settlement agreement had been reached through email communications between counsel.

However, the required sworn affidavit evidence and motion materials necessary for approval of a minor’s settlement under Rule 7.08 had not been properly filed.

As a result, the court could not approve the settlement and restored the action to the trial list.

Applicants sought to set aside a temple by-law passed at a September 2007 general meeting, arguing that forged membership applications and improper proxies invalidated the meeting and the resulting constitution of the organization.

They further alleged that the current board improperly restricted membership.

The court held that the applicants failed to prove on a balance of probabilities that forged memberships affected the June 2007 election or that proxies from that meeting were improperly used to pass the September 2007 by-law.

The evidence also did not establish that the board had improperly restricted membership.

The court upheld the validity of the by-law and dismissed the application.

The plaintiffs brought a motion arising from refusals on discovery concerning requests for handwriting specimens.

The action alleged that a life insurance policy conversion application contained a forged signature and that the forgery was prepared by or on behalf of a corporate principal.

The court held that obtaining original signature specimens from the alleged individual involved was relevant to the pleaded forgery allegation and ordered the corporate defendant to produce up to 30 original signature samples for examination by the plaintiffs’ expert.

However, the request for signature specimens from another employee was refused because no pleaded allegation connected that individual to the alleged forgery.

Given the mixed success on the refusals, costs were ordered in the cause.

Following a reference determining entitlement to contract funds under the Construction Lien Act, the court addressed costs between the parties.

An added party supplier who succeeded at the trial of an issue sought substantial indemnity costs against the plaintiff lien claimant.

The court found the claimant engaged in misleading and reprehensible conduct, including misrepresenting contractual arrangements, misappropriating deposit funds, and pursuing a lien claim despite alternative dispute mechanisms.

Substantial indemnity costs were awarded to the successful supplier and partial indemnity costs were awarded to the contractor defendant against the claimant.

The court also confirmed distribution of funds paid into court and declared the plaintiff’s construction lien invalid.

The plaintiff, operating as Neptun Light, registered a construction lien claiming entitlement to $147,776.60 owed by the defendant contractor for the supply of lighting fixtures.

An added party, Neptun Distributors, also claimed entitlement to the funds, asserting it was the true contracting party.

The court held a trial of an issue to determine who contracted with the defendant.

Applying an objective standard for contract formation, the court found that the contract was formed between the defendant and Neptun Distributors, and that the plaintiff acted as an agent for Neptun Distributors.

The court directed that the funds be paid to Neptun Distributors.