Martin A. Smith

The decision addresses two motions in a commercial real estate dispute: a motion to strike claims against individual condominium directors, and a motion for production of documents.

The court struck the claims against the directors but granted the plaintiff leave to amend, finding the pleadings did not sufficiently distinguish the directors’ conduct from that of the corporation.

The court also dismissed the plaintiff’s production motion, holding that privilege over communications with counsel and the property manager was not waived by the addition of the property manager as a third party.

The ruling clarifies the high threshold for personal liability of condominium directors and the scope of privilege in multi-party litigation.

The plaintiff, a long-term senior employee, brought a motion for summary judgment seeking damages for wrongful dismissal, including a 24-month notice period, bonus, benefits, and unpaid vacation pay.

The defendant employer argued for a shorter notice period and that the plaintiff failed to mitigate losses.

The court granted summary judgment, finding the plaintiff was entitled to a 24-month notice period, full bonus, benefits, and a portion of the claimed unpaid vacation pay, rejecting the employer's mitigation defence and bonus exclusion clauses.

The appellant appealed the dismissal of his claim for damages related to an oil spill caused by a corroded oil filter.

The appellant argued that the respondent's oil burner technician (OBT) breached the standard of care by failing to replace the filter, citing manufacturer instructions for annual replacement, the Ontario Installation Code for Oil-Burning Equipment, and a duty to 'tag out' the filter.

The Court of Appeal upheld the trial judge's findings that the OBT was not obligated to replace the filter if it was in good condition, that manufacturer instructions were recommendations rather than requirements under the Code, and that the 'tag out' requirement did not apply as the OBT deemed the filter in good working order.

The appeal was dismissed, affirming the trial judge's factual findings.

Following a successful motion to strike the plaintiff's claim against the board member defendants, the court determined the quantum of costs.

The defendants sought $15,784.88 for the motion and the action to date, while the plaintiff argued for $7,000.

The court awarded the defendants $10,490 inclusive of fees, HST, and disbursements, finding that while the defendants' claimed hours for research were high, they were entitled to costs for both the motion and the action.

The plaintiff condominium owner sued the condominium corporation and its individual board members for construction deficiencies and alleged negligence in their decision-making.

The board members moved to strike the claims against them, and the plaintiff sought leave to amend the statement of claim.

The court struck the claims against the individual directors without leave to amend, finding that the pleadings failed to differentiate the directors' actions from those of the corporation.

The court held that directors cannot be held personally liable for decisions made in their capacity as the directing minds of the corporation absent allegations of independent tortious conduct or a separate identity of interest.

The plaintiffs commenced two actions arising from the purchase of a property with structural issues: one against Stewart Title for breach of title insurance contract and a "tort action" against multiple parties (vendors, home inspector, township, contractors) for property defects.

Stewart Title moved to consolidate the two actions.

The plaintiffs and two defendants from the tort action (the vendors) opposed consolidation, preferring the actions be heard together or one after the other.

The court, applying Rule 6.01 of the Rules of Civil Procedure, conducted a costs/benefits analysis.

It rejected the notion of an elevated onus for consolidation and found that ordering the actions to be heard together, with common discoveries and pre-trial, best served efficiency and fairness.

This decision was primarily to avoid significant costs and delays associated with potential crossclaims and pleadings disputes that full consolidation would trigger, particularly regarding Stewart Title's potential subrogation claims.

The motion for consolidation was dismissed, and an order for the actions to be tried together was granted with specific directions for common pre-trial and discoveries.

The plaintiff, a former Service Advisor at a Canadian Tire store, sued his former employer and others for wrongful dismissal, malicious prosecution, defamation, and other torts after he was fired and arrested for allegedly installing KGB spyware on his manager's computer.

The plaintiff claimed he was framed by the defendants either because he refused to 'upsell' or as a decoy for a separate credit card pin pad fraud.

The court rejected the plaintiff's conspiracy theories, finding that the employer proved on a balance of probabilities that the plaintiff installed the spyware, which constituted just cause for dismissal.

The court also dismissed all tort claims, finding the defendants had reasonable grounds to call the police, the police independently decided to lay charges, and the defendants' conduct was not malicious, outrageous, or defamatory.

The appellants appealed a trial judgment awarding moral damages of $60,000 for breach of the implied contractual obligation of good faith in the manner of dismissal, along with general damages of ten months' salary in lieu of notice and $25,000 for sexual harassment under the Human Rights Code.

The appellants contended the moral damages award should be reduced to $20,000, arguing the trial judge considered irrelevant factors and that the award duplicated the sexual harassment damages.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the manner of dismissal holistically, including pre- and post-termination conduct that constituted bad faith.

The court held that moral damages and Human Rights Code damages serve different purposes and do not constitute double recovery.

The defendant Lumipro Inc. sought leave to appeal an order from Justice Robert J. Smith.

The original order dismissed Lumipro's summary judgment motion and granted the plaintiff's motion to substitute Maxrelco (Immeubles) Inc. as the plaintiff, correcting a misnomer despite the ostensible expiry of the limitation period.

The court denied leave to appeal, finding no conflicting jurisprudence and no good reason to doubt the correctness of the motion judge's decision.

The court affirmed that the decision aligned with established Court of Appeal precedent on the expansive interpretation of "misnomer," which allows for the substitution of a correct corporate plaintiff when there is no prejudice and the defendant was aware of the intended claimant.

Maxrelco Inc. sought substantial indemnity costs for successfully opposing a summary judgment motion brought by Lumipro Inc. and for its own cross-motion to amend the plaintiff's name to correct a misnomer.

Lumipro Inc. argued the costs claimed were excessive, that its summary judgment motion was reasonably brought, and that no costs should be awarded for the misnomer amendment.

The court, applying Rule 57 of the Rules of Civil Procedure, found that substantial indemnity was not warranted because the summary judgment motion raised an arguable issue and the need for the misnomer amendment was due to the plaintiff's initial error.

The court fixed costs on a partial indemnity basis for the summary judgment motion, ordering Lumipro Inc. to pay Maxrelco Inc. $12,000 plus HST and disbursements.

The defendant Lumipro Inc. sought summary judgment to dismiss the action, arguing the plaintiff Maxrelco Inc. lacked standing as it was a shareholder, not the property owner, and that Lumipro was only hired for repairs, not maintenance.

Maxrelco Inc. brought a cross-motion to amend its Statement of Claim to correct a misnomer, changing the plaintiff to Maxrelco (Immeubles) Inc., the actual property owner.

The court granted Maxrelco's cross-motion, finding it was a misnomer and caused no prejudice to the defendant.

Consequently, the court dismissed Lumipro's summary judgment motion, determining there was a genuine issue requiring a trial regarding the cause of the fire and Lumipro's alleged negligence in sign repair and maintenance.

The defendant Children's Aid Society brought a motion to strike the self-represented plaintiff's statement of claim for failing to disclose a reasonable cause of action.

The plaintiff, whose child had been apprehended, alleged deceit, misrepresentation, and intentional infliction of mental suffering by the Society.

The court found that while the Society generally owes no duty of care to parents in negligence, the plaintiff's allegations sounded in intentional wrongdoing and bad faith, which might pierce the Society's statutory immunity under the Child and Family Services Act.

However, because the claim lacked sufficient material facts, the court struck the pleading but granted the plaintiff leave to amend.