Mark Harris Arnold

The appellants obtained judgments in the United States against the Islamic Republic of Iran and its agencies for kidnapping, detention, and torture.

They brought an action in Ontario to enforce those judgments.

The motion judge dismissed the action on the basis that the defendants were immune from jurisdiction under the State Immunity Act.

On appeal, the appellants argued that the acts constituted commercial activity, that a common law exception applied, and that the defendants lost immunity by violating jus cogens norms.

The Court of Appeal dismissed the appeal, finding that the State Immunity Act is a complete code, the acts were not commercial, and customary international law does not recognize a jus cogens exception to state immunity.

Following the settlement of a motion seeking to determine and fix the owner’s statutory holdback under the Construction Lien Act, the court was required to determine the appropriate costs award.

The moving subcontractor argued that the owner delayed addressing the holdback issue, necessitating the motion and increasing litigation costs, and sought enhanced partial indemnity costs.

The responding party argued the motion was over-lawyered and that only minimal costs should be awarded.

The court held that the motion produced a successful result by compelling the owner to fund an interim holdback available for distribution to subcontractors, entitling the moving party to costs.

However, no exceptional circumstances justified enhanced costs, and a fair and proportionate partial indemnity award was fixed.

Addendum to a civil damages judgment awarding the plaintiff compensation and addressing the calculation of pre-judgment interest.

After awarding damages in earlier reasons, the court reviewed a calculation of pre-judgment interest submitted by plaintiff’s counsel pursuant to the Courts of Justice Act.

The court accepted the calculation as accurate.

The plaintiff was therefore awarded additional pre-judgment interest in the specified amount.

The plaintiff brought a motion for default judgment against the defendant, a prosthodontist, for damages arising from dental malpractice.

The defendant had extracted all of the plaintiff's teeth and caused severe infections, temporomandibular joint disorder, and other injuries.

The court held that liability was established by the default and awarded the plaintiff $163,484.01 in special damages and $150,000 in non-pecuniary general damages, plus costs.

The applicant, a mother of a 10-month-old, filed a human rights complaint against her condominium corporations after being barred from the complex's swimming pools due to rules prohibiting children under two and persons in diapers.

The rules also restricted children under 16 to limited hours.

The respondents argued the rules were necessary for the health and safety of the predominantly senior residents, citing risks of waterborne illnesses like Cryptosporidium.

The Tribunal found the respondents' scientific evidence unpersuasive and concluded the risk of contamination was extremely low in a properly maintained pool.

The Tribunal held that the age and diaper prohibitions, as well as the restricted hours, constituted discrimination on the basis of family status and were not reasonable or bona fide.

The respondents were ordered to repeal the discriminatory rules and pay the applicant $10,000 for injury to her dignity, feelings, and self-respect.

The plaintiff condominium corporation appealed a Master's order refusing leave to amend its statement of claim to add a related company as a defendant and assert a fraudulent conveyance claim regarding two mortgages.

The Master found the proposed claim was statute-barred under the Limitations Act, 2002.

On appeal, the Divisional Court upheld the Master's decision, confirming that a fraudulent conveyance action is a 'claim' under the new Limitations Act, 2002, and is subject to the basic two-year limitation period.

The court also agreed that the plaintiff was seeking consequential relief, meaning the exemption for purely declaratory relief did not apply, and found no palpable and overriding error in the Master's conclusion that the claim was discoverable more than two years before the proposed amendment.

The appellant unit owner rented his condominium units to students, prompting the respondent condominium corporation to seek a compliance order enforcing a 'one family residence' declaration.

The appellant moved to stay the application, arguing the Condominium Act mandated mediation and arbitration.

The motion judge dismissed the stay, noting the dispute involved tenants who were not subject to arbitration, and splitting the proceedings would be unreasonable.

The Court of Appeal upheld the decision, finding the motion judge properly exercised his discretion under the Arbitration Act and Courts of Justice Act to avoid a multiplicity of proceedings.

The appellant appealed a motion judge's decision to strike out several paragraphs of its pleading.

The motion judge held that a ruling of the Ontario Securities Commission is not a contract as required by s. 23(1)(b) of the Condominium Act.

The Court of Appeal agreed, finding that granting leave to amend would not cure the deficiency, and dismissed the appeal with costs.

The appellants appealed a trial judgment holding them jointly and severally liable for $105,647.98 in unpaid legal fees owed to the respondent law firm.

The trial judge found that the appellants, who were defendants in the underlying action, colluded with the plaintiffs (the law firm's clients) to reach a secret settlement designed to defeat the law firm's claim for its fees.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellants knew of the outstanding fees and that the settlement, which lacked commercial reasonableness, was structured specifically to avoid paying the law firm.

The appellant condominium corporation appealed a trial judge's decision disallowing its claims for security services and realty taxes against the respondent, who owned a commercial underground parking garage below the condominium.

The Court of Appeal upheld the trial judge's interpretation of the Parking Garage Agreement, finding no obligation for the respondent to pay for security services and affirming a subsequent agreement regarding realty taxes.

The respondent's cross-appeal was allowed in part to correct the formal judgment and to declare claims prior to July 4, 1995, statute-barred.

The appellant condominium corporation appealed a decision refusing to enforce its 'no pets' policy against the respondent.

The respondent had lived in her unit with her cat for over 10 years, during which time maintenance personnel had been in her unit.

The appellant only decided to step up enforcement in 2004.

The Court of Appeal dismissed the appeal, finding it would be inequitable to grant a compliance order given the long period of non-enforcement.

The appellant condominium corporation obtained a compliance order against the respondent unit owner for operating a short-term rental business.

The appellant then added its actual legal and administrative costs to the respondent's common expenses and registered a lien under s. 85(1) of the Condominium Act.

The motion judge discharged the lien, finding that 'additional actual costs' under s. 134(5) did not include legal costs beyond those awarded by the court.

The Court of Appeal allowed the appeal, holding that s. 134(5) permits a condominium corporation to recover its actual legal costs incurred in obtaining the order, including appeal costs, but not enforcement or unrelated administrative costs.

A reference was ordered to determine the proper amount of the lien.

The appellants appealed a trial judgment that found the parties entered into a contract containing a performance guarantee, which the respondents breached, but limited damages to $1.00.

The appellants argued the trial judge erred by finding a performance guarantee existed despite it not being explicitly pleaded as a term, and by failing to find it unconscionable.

The respondents cross-appealed the trial judge's decision to order the parties to bear their own costs despite a Rule 49.10 offer.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding the trial judge's conclusions on the contract terms were supported by the pleadings and evidence, and her discretion on costs was properly exercised.

The appellant, an Iranian citizen who later immigrated to Canada, brought a civil action in Ontario against the Islamic Republic of Iran for damages arising from his abduction, imprisonment, and torture by Iranian state agents in Iran.

Iran did not defend the action.

The Court of Appeal upheld the dismissal of the action, finding it was barred by the State Immunity Act.

The Court held that none of the statutory exceptions to state immunity applied, including the commercial activity and tort exceptions.

Furthermore, the Court concluded that neither Canada's treaty obligations nor customary international law required Canada to provide a civil remedy against a foreign state for torture committed abroad, and that the State Immunity Act did not violate section 7 of the Charter.

The appellants appealed the appointment of an administrator for a condominium corporation and the award of substantial indemnity costs against them.

The Court of Appeal upheld the appointment of the administrator, finding no palpable and overriding error in the motion judge's conclusion that a state of disequilibrium existed due to tension between two groups with divergent interests regarding the transient use of units.

However, the Court granted leave to appeal costs and substituted an award of partial indemnity costs, finding no basis for substantial indemnity costs.

The appellant appealed an order regarding his activities in a condominium unit, arguing that the respondent's affidavit evidence was inadmissible for non-compliance with Rule 39.01(5).

The Court of Appeal reviewed the trial judge's order and found that each paragraph was reasonably supported by admissible evidence based on the personal knowledge set forth in the affidavit.

The appeal was dismissed with costs awarded to the respondent.

The Attorney General of Canada moved for an order to clarify its status in an appeal where the appellants challenged the constitutionality of the State Immunity Act.

The Attorney General had intervened at trial to defend the Act's constitutionality.

The Court of Appeal held that under s. 109(5) of the Courts of Justice Act, the Attorney General retains intervener status but acquires certain appellate rights limited to the constitutional issue.

The Court ordered the title of proceedings amended to show the Attorney General as an Intervener (Respondent) and permitted the filing of a supplementary exhibits book.

The Court of Appeal previously dismissed the appeal with costs.

In this costs endorsement, the court fixed the costs of the respondents Ivandaeva Total Image Salon Inc. and Denis Ivandaev.

Noting that their counsel provided very little assistance on the central issue of the appeal, the court awarded costs on a partial indemnity scale fixed at $3,000 inclusive of disbursements, plus GST.

The respondent Elena Ivandaeva did not participate and was not awarded costs.

The appellants, defendants in commercial litigation, sought to set aside a sealing order made in a separate matrimonial proceeding involving the plaintiff.

The appellants' counsel had accessed the matrimonial file, which had not been physically sealed due to an administrative error, and copied documents to use in the commercial litigation.

The motion judge ordered the appellants to comply with the sealing order and dismissed their cross-motion to set it aside.

The Court of Appeal dismissed the appeal, holding that the appellants were not 'persons affected' by the sealing order within the meaning of Rule 37.14(1) of the Rules of Civil Procedure, as their proprietary or economic interests were not directly affected, and therefore they lacked standing to challenge it.

The applicant was injured in two motor vehicle accidents 26 days apart.

After her WCB benefits for the first accident were terminated, she applied to her auto insurer for statutory accident benefits relating to the second accident.

The insurer denied the claim, arguing she was no longer disabled or that any disability stemmed from the first accident.

The arbitrator found that the second accident significantly exacerbated her injuries and that she remained substantially unable to perform the essential tasks of her pre-accident employment.

The applicant was awarded weekly income benefits and rehabilitation expenses for a work re-activation program, but her claims for chiropractic expenses and a special award were dismissed.