Markus Koehnen

The applicant appealed and sought judicial review of a Licence Appeal Tribunal decision granting statutory accident benefits to a passenger injured when a bus drove over a raised manhole cover.

The Divisional Court found no error in the Tribunal's findings that the manhole cover was an 'object' and the impact constituted a 'collision' under s. 268(1.1) of the Insurance Act.

The appeal and application were dismissed.

In this class action damages trial arising from negligent facilitation of frequent trading in retail mutual funds, the court held that dilution caused by time zone arbitrage should be quantified using the Next Day NAV method rather than the profits method.

The court rejected the argument that prior OSC settlements conclusively compensated investors, found that objective trading characteristics and circumstantial evidence were sufficient to identify time zone arbitrage, and declined to require direct evidence of each trader’s subjective motivation.

Additional timer accounts were included for one defendant outright and for the other subject to specified filters, and the class definition was amended accordingly to exclude those market timers from recovery.

The court awarded principal damages of $60.48 million against one remaining defendant, plus further amounts for qualifying additional accounts, and $37,900,659.63 against the other, with simple prejudgment interest at 2.8% from commencement of the action.

The applicant, a declared vexatious litigant, sought leave to continue her action against the Crown for alleged failure to supervise the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario.

She also sought default judgment.

The court dismissed both motions.

The noting in default was invalid and had been set aside.

The action against the Crown lacked reasonable grounds because the Crown is not vicariously liable for the College's actions.

Furthermore, the action was an abuse of process, representing a collateral attack on professional disciplinary proceedings that the applicant had already unsuccessfully appealed.

At a case conference, the plaintiffs challenged the adequacy of a will say statement delivered by the defendants for a proposed trial witness.

The court found the statement inadequate because it merely set out a list of issues the witness would address rather than summarizing the substance of his evidence.

The court emphasized that a will say statement must disclose the 'who, what, where, when, why and how' of the evidence to avoid trial by ambush.

Following a decision granting judgment in favour of the respondents on an application involving a mortgagee's right to sell property, the respondents sought costs of $270,292.15.

The applicant opposed costs on the basis that the respondents had provided a misleading answer to the court regarding the arm's-length nature of a proposed purchaser, which was subsequently assigned to an entity connected to an investor behind the second mortgage.

The court found the respondents' refusal to answer follow-up questions about the assignment and the relationship between the purchaser and the investor raised serious doubts about the accuracy of representations made during the proceeding.

Exercising its discretion to depart from the general principle that costs follow the event, the court declined to award costs to the successful party as a sanction for non-cooperation with the court.

The defendants (other than Johnson Controls) brought a motion to stay the action based on alleged failure by the plaintiff and Johnson Controls to immediately disclose a settlement agreement (the Pro Rata Agreement) that they claimed changed the litigation landscape.

The court dismissed the motion, finding that timely disclosure was made in the context of this particular case and that the agreement did not change the litigation landscape because the action had been effectively stayed and the dispute was being pursued in arbitration.

The court also addressed the application of new Rule 49.14 regarding partial settlement disclosure and fashioned appropriate remedies.

The defendants brought a motion to strike out the third party claim as disclosing no cause of action.

The third party claim named 27 different third parties, including individual shareholders and their spouses, corporate entities, the plaintiffs' bank, and the plaintiffs' lawyers.

The court found that the third party claim was based on bald allegations without material facts and failed to meet the minimal pleading standards.

The court struck the third party claim in its entirety with leave to amend and awarded costs to the third parties on a partial indemnity scale.

The plaintiffs brought a motion for a Mareva injunction to freeze approximately $6.1 million in settlement funds held in the defendant's solicitor's trust account.

The funds were allegedly derived from a fraudulent investment scheme involving the defendant corporation, which was controlled by individuals connected to a Ponzi scheme operated by Arash Missaghi.

The plaintiffs alleged they were induced to invest substantial sums through misrepresentation and fraud.

The court granted the Mareva injunction, finding the plaintiffs established a strong prima facie case of fraud, that assets were in the jurisdiction, that there was a risk of dissipation, and that irreparable harm would result if the funds were distributed.

The court also allowed the defendant to withdraw $250,000 from the frozen funds for legal expenses.

The applicants sought to set aside or appeal four arbitral awards arising from a dispute over a $20 million charitable donation and associated naming rights for a community campus.

The arbitrator had found that the applicants breached their obligations and declared that the respondents were entitled to revoke the naming rights.

The Superior Court of Justice dismissed the applications, finding no jurisdictional errors, breaches of procedural fairness, or extricable errors of law.

The court held that the arbitration agreement precluded appeals and that the arbitrator's findings on issues including contract formation, relief from forfeiture, and damages were reasonable and supported by the evidence.

The respondents' cross-application to recognize and enforce the arbitral awards was granted.

Following the dismissal of the plaintiffs' action against the defendants Ashok and Usha Badhwar in the trial decision indexed as 2024 ONSC 7285, the Badhwars sought costs of the action.

The defendants were represented at trial by their daughter-in-law, Rhea Sharma, a lay representative, rather than by counsel.

The court considered the principles established in Girao v. Cunningham regarding costs awards to self-represented litigants and lay representatives.

The court awarded costs to the Badhwars despite the absence of formal legal representation, recognizing that Ms. Sharma had devoted significant time and effort to the case and that the Badhwars were vulnerable parties who required assistance.

The defendant bank moved for summary judgment to dismiss an action brought by a former lawyer seeking $10,000,000 in damages for the revocation of his law license and criminal conviction for fraud.

The plaintiff alleged that the bank's negligent administration of his trust account, specifically double-debiting certified cheques, caused a shortfall that prevented a real estate transaction from closing, which triggered a Law Society investigation and ultimately led to his license revocation and criminal conviction.

The court granted the motion and dismissed the action, finding that the plaintiff's license revocation and conviction were caused by his own misappropriation of trust funds, not by the bank's double-debits.

The investigation was initiated by a complaint from the plaintiff's former law clerk regarding unauthorized transfers from the trust account, not by the failed transaction.

The court found no causal link between the bank's conduct and the damages claimed.

The plaintiff, a Global Strategic Client Executive earning approximately $760,000 annually, brought a motion for summary judgment for damages arising from his termination without cause by Oracle Canada ULC.

The court awarded 12 months of reasonable notice based on the Bardal factors, including the character of his specialized employment, his age (61), short length of service (3.7 years), and Oracle's failure to provide a meaningful letter of reference.

The court rejected Oracle's mitigation argument as unsupported by affirmative evidence.

The plaintiff was awarded damages for base salary, commissions (calculated on a three-year average), benefits (10% of base salary), and RRSP matching contributions (6% of base salary), less working notice and mitigation income.

The court also awarded punitive damages equal to the withheld commissions for Oracle's breach of the duty of good faith in failing to pay statutory entitlements during the notice period and maintaining an untenable legal position without explanation.

The plaintiff lender brought a motion for summary judgment on a collateral mortgage registered on the defendants' home.

The defendants counterclaimed alleging undue influence and unconscionability.

The court dismissed the lender's motion, finding genuine issues for trial regarding the interplay between undue influence, unconscionability, and independent legal advice.

The court also dismissed the motion of the defendants' son's lawyer, finding genuine issues regarding a conversation with the defendant.

However, the court granted summary judgment in favour of a lawyer friend of the son who had minimal involvement, finding no basis for liability.

The defendants moved for default judgment on their counterclaim for two secured loans totaling approximately $45 million in principal plus interest and protective disbursements.

The plaintiffs' statement of claim and defence to counterclaim had been struck out for failure to pay a costs award.

The court granted judgment on the two loans but reduced the judgment by disallowing $6,105,693.66 in unproven protective disbursements claimed under the second loan.

The court stayed enforcement of the judgment pending the Divisional Court's decision on the plaintiffs' motions for leave to appeal.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action for breach of a settlement agreement on the basis that it was commenced outside the two-year limitation period.

The plaintiffs argued that a rolling limitation period applied because the agreement involved periodic payments.

The court held that a 'once and for all' limitation period applied because the defendants had categorically repudiated the agreement and declared it null and void more than two years before the action was commenced.

The motion was granted and the action was dismissed as statute-barred.

The court considered three motions for summary judgment arising from a mortgage dispute.

The plaintiff, Indigoblue Mortgage Investment Corporation, sought summary judgment against the defendants, Muhammad Ahmad and Sajidah Kausar, for defaulting on a second mortgage.

The defendants alleged they did not understand the mortgage transaction and raised defences of non est factum and forgery, claiming their son Awais Ahmad fraudulently encumbered the property.

The court found the defences unsubstantiated, holding that the defendants understood the transaction and that the mortgage was not a fraudulent instrument under the Land Titles Act.

The defendants' motion for summary judgment against third-party lawyer Toloue Ghahraei was dismissed, as was their claim of solicitor negligence.

The court granted summary judgment in favour of both the plaintiff and Ghahraei, dismissing the third-party claim against her.

The plaintiff, a building manager, was terminated when the building's property management contract changed hands.

The new service provider, Duka, did not retain him.

On a motion for summary judgment, the court had to determine whether the old provider (Crossbridge) or the new provider (Duka) was liable for common law notice under s. 75 of the Employment Standards Act.

The court held that the new provider is responsible for common law notice, as this interpretation aligns with the legislative intent to stabilize employment in the building services sector.

The court awarded the plaintiff 10 months' notice, plus 10% for lost benefits, rejecting the defendants' argument that the plaintiff failed to mitigate his damages.

The court determined that the applicants were not entitled to extend their subleasehold interest in commercial premises for a further five years because they had committed at least three defaults, constituting "habitual default" under the sublease.

The court found that the applicants failed to meet the conditions for extension, including defaults related to unauthorized physiotherapy services, late rent payments, fire code deficiencies, and nonpayment of rent during COVID-19 closures.

The court also held that the equitable remedy of relief from forfeiture did not apply, as the applicants' defaults were not due to circumstances beyond their control.

The application was dismissed, and costs were awarded to the respondents.

The court considered a motion by the Crown in Right of Ontario (on behalf of the OPP) to dismiss all claims against it for lack of notice under the Crown Liability and Proceedings Act, and a cross-motion by Certas Home and Auto Insurance to compel further discovery.

The court struck the plaintiff’s claim against the Crown for lack of notice but allowed Certas’ crossclaim to continue, holding that the statutory notice requirement does not apply to crossclaims.

The court also ordered Constable Khabra to re-attend for discovery to answer questions arising from undertakings, and addressed the requirements for Crown witness designation.

Costs were fixed in favour of Certas.

The court voided six promissory notes and struck out related mortgages registered by the plaintiffs against the defendants' properties, finding that the notes were materially altered without consent, contrary to the Bills of Exchange Act.

The court also declined to grant equitable mortgages or certificates of pending litigation, citing the plaintiffs' inequitable conduct and failure to meet statutory tests.

The decision addresses issues of forged notes, after-acquired property, corporate personality, and the application of the Family Law Act to matrimonial homes.