Mark Polley

The defendants moved under s. 7(1) of the Arbitration Act, 1991 to stay the plaintiff's action on the basis that the dispute was subject to a mandatory arbitration clause in an Independent Contractor Agreement.

The plaintiff opposed the stay, arguing the arbitration agreement was invalid because it required arbitration administered by JAMS, which allegedly created a biased process, was unconscionable, and was incapable of being performed.

The court found that the technical prerequisites for a stay were met and that the plaintiff failed to establish any statutory exceptions, noting the agreement did not restrict the selection of an independent arbitrator.

The motion to stay the action was granted.

The defendant parent corporation brought a motion to stay or dismiss the plaintiff's action against it on the basis of forum non conveniens.

The plaintiff, a real estate broker, sued the parent corporation and its Canadian subsidiary for breach of contract and oppression under the Canada Business Corporations Act.

The court found that the parent corporation was not a party to the independent contractor agreement and that the plaintiff's only relationship with it was as a shareholder.

Because the shareholding agreements contained an exclusive forum selection clause in favour of Delaware, and the plaintiff failed to show strong cause why it should not be enforced, the court granted the motion and stayed the action against the parent corporation.

The defendants, Global News and its journalists, brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action brought by a Member of Parliament.

The defamation claim arose from news stories alleging the MP advised a Chinese diplomat to delay the release of two detained Canadians.

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

However, the plaintiff demonstrated that his defamation action had substantial merit and that the defendants' defenses of truth/justification and responsible communication were not valid.

The court concluded that the public interest in allowing the defamation proceeding to continue, to determine the truth of the serious allegations and vindicate the plaintiff's reputation, outweighed the public interest in protecting the defendants' expression.

The defendants' motion to dismiss was dismissed.

The applicant anesthesiologist sought judicial review of an interim order by the College's Inquiries, Complaints and Reports Committee (ICRC) that effectively suspended his practice by requiring constant clinical supervision.

The order followed incidents involving patient harm, including a death, and allegations of falsified medical records and inattention.

The Divisional Court dismissed the application, finding the ICRC's decision reasonable as there was 'some evidence' of probable harm to patients and the committee adequately justified why less restrictive measures were insufficient.

The plaintiff sought an order to compel the sale of assets (a property, rural land, and vehicles) under Rule 45.01 and 45.02 of the Rules of Civil Procedure, alleging asset deterioration and seeking payment into court.

The defendants raised a jurisdictional objection, arguing a Master could not vary a judge's preservation order or grant mandatory injunctive relief.

The Master declined jurisdiction, finding that compelling a sale would effectively set aside or vary existing preservation orders made by a judge, and that mandatory orders are exclusively for judges.

Alternatively, the Master found that even if jurisdiction existed, the relief would not be granted as the assets were adequately protected by existing orders and undertakings, and compelling a sale would prejudice the defendants and a non-party (Jonathan Rewa) without a proven claim.

The motion was dismissed.

The Ontario government cancelled an electric car subsidy program but extended it for a two-month transition period.

The applicant, Tesla Motors Canada ULC, was explicitly excluded from this transition program by a condition limiting it to "franchised automobile dealerships." Tesla sought judicial review, arguing the exclusion was arbitrary, unlawful, and made for an improper purpose without procedural fairness.

The court found the decision to exclude Tesla was arbitrary, unrelated to the stated policy goal of protecting small to mid-sized dealers, and constituted an egregious exercise of discretion for an improper purpose.

The court quashed the minister's decision to implement the transitional program.

Staff of the Ontario Securities Commission brought proceedings against the respondent for insider trading and tipping.

The respondent admitted to receiving confidential information about an acquisition and using it to purchase shares, as well as passing the information to another individual who also traded on it.

The Commission approved a settlement agreement, noting the respondent's significant cooperation, and ordered a two-year market participation ban, a $5,500 administrative penalty, and $5,500 in disgorgement.

The plaintiff alleged negligence and breach of fiduciary duty against her investment advisor and related entities arising from recommendations to invest retirement assets in long-term growth securities and universal life policies rather than income-focused products.

The court held that the relationship was not fiduciary, applying broker-client fiduciary factors and emphasizing the absence of discretionary authority, the plaintiff's sophistication, and her approval of each trade.

On the negligence claim, the court found the recommended balanced long-term growth strategy was suitable having regard to the plaintiff's objectives, investment knowledge, time horizon, tax planning goals, and need for asset growth, and rejected the plaintiff's expert's hindsight-based benchmarking methodology.

The court further held that the plaintiff's losses were caused by extraordinary and unanticipated withdrawals to fund Jamaican real estate development and other expenditures, not by unsuitable advice.

The plaintiff's late motion to amend her pleadings to recast her objectives as income-focused was denied, and the action was dismissed.

The appellant, counsel for the plaintiff in an underlying action, appealed a motion judge's order requiring him to personally pay $84,000 in costs on a joint and several basis with his client under Rule 57.07.

The underlying action had been dismissed as an abuse of process and a collateral attack on prior rulings.

The Court of Appeal dismissed the appeal, finding that the appellant had adequate notice of the grounds for the costs order and that the motion judge properly exercised her discretion.

The motion judge correctly concluded that the appellant caused costs to be incurred without reasonable cause by commencing an abusive action and taking unreasonable procedural steps, such as insisting on a jurisdiction motion proceeding alongside a motion to strike.

In proceedings under the Companies’ Creditors Arrangement Act arising from the insolvency of a payday lending enterprise, class members moved for approval of settlement administration measures related to consumer class action settlements.

The requested approvals included a settlement distribution protocol, notice plan, privacy and information management protocol, and appointment of a claims administrator.

A third‑party creditor that had purchased loan receivables from the debtor sought accommodation to assert an equitable set‑off against class members’ settlement recoveries.

The court held that the creditor’s claim lacked the close connection required for equitable set‑off and was effectively a prejudgment garnishment against settlement funds.

The administrative protocols were approved as fair, reasonable, and in the best interests of class members.

In CCAA proceedings involving a payday lending enterprise, class members in Ontario consumer class actions moved for approval of three settlement agreements forming part of a broader global resolution of litigation involving the debtor companies, their directors and officers, and related parties.

The settlements resolved certain class claims and partially resolved a third‑party lender claim, providing more than $10 million in recovery with potential participation in future litigation proceeds.

The court applied established settlement approval factors including likelihood of success, litigation risks, counsel recommendations, absence of objections, and arm’s‑length negotiations.

The court concluded that the settlements were fair, reasonable, and in the best interests of the class and the restructuring process.

Following dismissal of a motion to extend an interim injunction relating to demolition of a historic school building and the discontinuance of a related judicial review application, a respondent school board sought costs against the applicant.

The applicant argued he was a public interest litigant acting to preserve a heritage building under the Ontario Heritage Act.

The court reviewed the principles governing costs against public interest litigants and applied factors including lack of personal financial interest, the broader public importance of heritage preservation, and the litigant’s good‑faith conduct.

The court concluded the applicant qualified as a public interest litigant and had not acted vexatiously or abusively.

Consistent with the usual approach in public interest litigation, the court declined to order costs.

The plaintiff brought an action against 39 defendants, including lawyers, police officers, and private investigators, seeking $20 million in damages for various torts including abuse of process, negligent investigation, and conspiracy.

The defendants moved to strike the claim.

The court found the action was a collateral attack on previous court orders finding the plaintiff in contempt of court.

The court dismissed the action in its entirety as frivolous, vexatious, and an abuse of process, and alternatively struck the claim for disclosing no reasonable cause of action.

Substantial costs were awarded to the defendants.

The moving party sought leave to appeal a costs order made by a case management judge in favour of certain defendants after the moving party had noted them in default.

The underlying dispute arose from procedural disagreements concerning the timing of a jurisdiction motion and related examinations.

The case management judge found the default tactic unreasonable and unnecessary given the defendants’ clear intention to defend and the availability of a scheduled case conference to resolve the procedural issues.

The court held there was no basis to doubt the correctness of the costs decision and that the dispute raised no issue of general importance warranting leave to appeal.

Leave to appeal the costs order was denied.

Following the release of its decision on the appeal, the Court of Appeal for Ontario issued a costs endorsement.

The parties agreed that costs should follow the event but left the determination of the quantum to the court.

The court fixed costs in the amount of $15,000 all-inclusive, payable by the respondent to the appellants.

The appellants, bondholders of BC Tel (predecessor to Telus), appealed a trial decision finding that BC Tel did not breach a 'no financial advantage covenant' when it redeemed bonds using proceeds from a securitization transaction.

The covenant prohibited redemption using funds obtained directly or indirectly through borrowings with an interest cost less than 11.35%.

The Court of Appeal allowed the appeal, holding that while the securitization involved a 'true sale' of accounts receivable, the transaction as a whole functioned to raise capital from the public.

Thus, the proceeds applied to redeem the bonds constituted funds indirectly obtained through borrowings at an interest cost to the company of less than 11.35%, violating the covenant.

The appellant appealed a summary judgment order that required payment of the judgment amount into court as a condition for a stay of execution pending trial on its counterclaim.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the doctrine of equitable set-off did not apply, as the claims arose over different time-frames and did not go to the root of the claim.

The Court also found no basis to interfere with the motion judge's discretionary order under Rule 20.05(3) imposing terms on the counterclaim, given the appellant's admission of the debt and lack of assets in the jurisdiction.

The appellant appealed a summary judgment order granting the respondent $378,270.98 and requiring the appellant to pay the judgment amount into court to obtain a stay of execution pending trial on its counterclaim.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the doctrine of equitable set-off did not apply, as the claims arose over different time-frames and did not go to the root of the claim.

The Court also found no basis to interfere with the discretionary order requiring payment into court as a condition for a stay of execution.