Martin P. Forget

An appeal from a trial judgment dismissing claims by a steel company against a former employee who established a competing business.

The trial judge found that the employee was not a fiduciary and therefore could not breach fiduciary duties.

Although the employee breached employment duties of good faith, loyalty, and fidelity by misappropriating business documents (constituting conversion), the trial judge found no damages were proven.

The appellate court dismissed the appeal, finding the trial judge's findings were open to her on the record and that her reasons were adequate for meaningful appellate review.

This costs decision follows the trial judgment in a motor vehicle insurance dispute.

The court addresses the adjustment of the judgment for a Pierringer Agreement, calculation of prejudgment interest, and the appropriate scale and quantum of costs.

The court finds that the net damages to be paid by Economical are $13,008.86, with prejudgment interest of $1,292.14, and costs awarded on the Small Claims Court scale, totaling $7,909.26.

The decision discusses the application of Rule 49 offers, proportionality, and the policy behind limiting costs where the claim could have been brought in Small Claims Court.

The trial concerned a third-party claim by the defendant, Cristy Mitton, against the Ministry of Transportation (MTO) and its contractor, Carillion Canada Inc., alleging negligent winter maintenance of Highway 41.

Mitton had previously settled the main action with the plaintiff, Ronald Busch, admitting 1% liability.

The court found that Highway 41 was in a state of non-repair due to being partially snow-packed, and this condition caused Mitton to lose control.

However, the MTO successfully discharged its onus by proving its winter maintenance operations were reasonable, including the decision to use salt despite low temperatures, as it was a judgment call aimed at achieving bare pavement.

The court dismissed the third-party claim, finding no liability on the MTO.

The Plaintiffs brought a motion to correct misnomers and add several corporate entities as defendants in an action stemming from a fire.

The motion sought to correct the name of "Cooper Lighting Internacional, S. de R.L. de C.V." to "Cooper Lighting de Mexico S. de R.L. de C.V." and to add "Cooper Lighting LLC", "Cooper Lighting Canada Limited", "SLP Lighting LLC", "Koller Enterprises", and "David Koller".

Applying the principles of misnomer from Loy-English, the court found that the "litigation finger" pointed at the Cooper Lighting entities and SLP Lighting LLC, allowing their addition/correction despite delays.

However, the requests to add Koller Enterprises and David Koller were dismissed due to insufficient evidence of their direct involvement as manufacturers or distributors.

The court exercised its discretion to grant the amendments, noting the lack of non-compensable prejudice to the proposed defendants and shared responsibility for litigation delays.

The appellant, Layla Hassan, appealed a judgment concerning Sun Life Assurance Company of Canada.

The Court of Appeal for Ontario, upon review of the materials and with the consent of both parties, dismissed the appeal without costs.

This is a costs endorsement following a trial where the plaintiff, Titus Steel Company Limited, was largely unsuccessful in its claims against the defendants, Wayne Robert Hack and his companies.

The primary issue at trial was whether Mr. Hack was a fiduciary and breached obligations by starting a competing business, which the court found he was not.

The plaintiff's only success was minimal, related to the taking of documents by Mr. Hack, which was easily proven.

The defendants, as the successful party, were presumptively entitled to costs.

They sought substantial indemnity costs due to unproven allegations of dishonesty, but the court declined to award them, citing the "rare and exceptional" nature of such awards and the defendants' own concerning conduct regarding the documents.

The court awarded partial indemnity costs to the defendants, fixing the quantum at $161,264.

The plaintiff, Titus Steel Company Limited, sued its former Vice President, Wayne Hack, and his new companies (Progressive Armor), alleging breach of fiduciary duty, breach of employment duties (fidelity, loyalty, good faith), misappropriation of confidential documents, conversion, and willful misconduct/gross negligence.

The court found that Hack was not a fiduciary and therefore did not breach any fiduciary duties by competing or soliciting customers post-resignation.

However, Hack did breach his employment duties and committed conversion by copying, deleting, and retaining Titus's business records.

The court found no damages for breach of confidence or the employment breaches related to documents, as Titus failed to prove loss or unauthorized use of confidential information, and a prior payment covered recovery costs.

Claims of willful misconduct/gross negligence regarding two clients were also dismissed due to lack of proof or the employer's own inconsistent conduct.

The court ordered the return of all business records to Titus.

This is an appeal from an order dismissing a motion to set aside a noting in default.

The appellants (defendants in the original action) had repeatedly delayed filing a defence, despite extensions and changes in counsel.

The motion judge applied the principles for setting aside a noting in default, considering the full context, including the parties' behaviour and reasons for delay.

The Court of Appeal found no error in the motion judge's comprehensive analysis and dismissed the appeal, affirming that the plaintiff was entitled to proceed given the defendants' prolonged non-compliance.

This endorsement concerns costs following an 18-day jury trial where the action was dismissed.

The defendant sought substantial indemnity costs, citing the plaintiff's refusal of multiple settlement offers, 14 years of litigation delay, and egregious conduct, including threats made by his agent.

The self-represented plaintiff argued unfamiliarity with court processes.

The court awarded the defendant $120,927.02 in costs, applying a partial indemnity scale up to January 5, 2024, and a substantial indemnity scale thereafter.

The judge found the plaintiff's conduct, including rationalizing threats, causing excessive and unexplained delays, and failing to prepare for trial despite ample opportunity, warranted the higher scale of costs, emphasizing the need to correct behaviour and discourage ill-founded litigation.

The appellant appealed the dismissal of his personal injury action, which was found to be statute-barred due to the two-year limitation period.

The motion judge concluded that the appellant's injuries were discoverable well within the limitation period.

The Court of Appeal dismissed the appeal, finding no reversible error in the motion judge's application of discoverability principles under the Limitations Act and the threshold for serious and permanent impairment under the Insurance Act.

The Court clarified that formal medical opinions required for a threshold motion are not necessary to trigger the limitation period.

The appellant, Ontario Place Corporation, appealed a trial judge's decision finding them liable under the Occupiers' Liability Act for injuries sustained by the respondent, Patrick Lyng, on their premises.

The trial judge found Ontario Place 75% liable and the respondent 25% contributorily negligent for a knee injury sustained after jumping down a wet, slippery hill when a pedestrian bridge was closed.

The appeal raised issues regarding the theory of liability, causation, breach of duty under the Act, contributory negligence, and the award for loss of competitive advantage.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings on all grounds, including the "train of events" causation and the damages award.

During a trial concerning an oil spill, the plaintiff sought to admit an expert witness, Michael Flynn, retained by their insurer.

The defendant objected, arguing Flynn did not qualify as a participant expert and his report was non-compliant with Rule 53.03.

The court ruled that Flynn was not a participant expert as he was engaged by a party to the litigation and his opinions were not based on personal observation or participation in the events.

However, the court granted leave under Rule 53.08 to admit his report and allow him to testify as a Rule 53 expert, finding a reasonable explanation for the non-compliance and no prejudice to the defendant.

The court qualified Flynn to provide expert opinion on the origin and cause of the oil spill, Microbial Influenced Corrosion (MIC) generally, and compliance with codes and regulations for heating appliances and fuel suppliers.

He was not permitted to testify on the standard of care applicable to an Oil Burner Technician (OBT), adhering to the "specialist to specialist" rule for such opinions.

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.

The Plaintiff, W. James D. Helmer, brought a motion seeking leave to amend his Statement of Claim against Economical Mutual Insurance Company.

The proposed amendments sought to particularize claims of waiver, misrepresentation, and promissory estoppel, and to clarify the claim for breach of duty to act in good faith, related to an insurance policy's 6558 Extension.

Economical opposed, arguing non-compensable prejudice due to delay and that new claims were asserted outside the limitation period.

The court also addressed a preliminary objection to the defendant's affidavit evidence.

The motion was granted, finding no actual non-compensable prejudice and that the amendments did not constitute new causes of action, leaving the limitation period dispute for trial.

The plaintiff brought an occupier's liability action against the Crown for injuries sustained after falling at a provincial park.

The trial proceeded on the issue of liability.

The court dismissed the action, finding the claim statute-barred due to the plaintiff's failure to provide notice within 10 days as required by the Proceedings Against the Crown Act.

Additionally, the court found that the plaintiff failed to prove she tripped on a hidden retaining wall as alleged, concluding instead that she slipped.

The court also determined that the Crown, as occupier, had acted reasonably and was not liable for an obvious risk or for injuries resulting from the plaintiff's misuse of the premises.

The appellant appealed an order refusing to set aside a registrar's order dismissing her action as abandoned due to delay.

The Court of Appeal found that the motion judge erred by overlooking strong evidence that the respondents suffered no actual prejudice from the litigation delay or the delay in bringing the set-aside motion.

The respondents' conduct, including requesting a waiver of defence and later serving a statement of defence, belied their claims of prejudice.

The court emphasized that the absence of prejudice and the importance of deciding cases on their merits should take precedence.

The appeal was allowed, and the dismissal orders were set aside.

This is a costs endorsement following a trial where the defendant successfully dismissed the plaintiff's action regarding a furnace oil leak.

The court assessed the defendant's partial indemnity costs, considering factors under Rule 57.01, including the principle of indemnity, the complexity of the proceeding, and the conduct of the parties.

The court found the defendant's costs reasonable, making adjustments for a previously dismissed motion and a clerk's hourly rate, ultimately ordering the plaintiff to pay $98,696.65.

The appellants appealed the dismissal of their action for delay by a motion judge, who had also dismissed their motion to extend the timetable.

The action, commenced in 2014, faced significant delays, primarily due to the appellants' failure to obtain written consent from the City of Ottawa (to whom the action was subrogated under the WSIA) for several years.

The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to provide an acceptable explanation for the inordinate delay and did not rebut the presumption of prejudice to the respondents, given the lack of progress in the litigation.

This decision addresses costs arising from a successful interlocutory injunction motion brought by Wayne and Liana Gendron against the City of Kawartha Lakes.

The Gendrons sought substantial indemnity costs, while TD Bank, a non-party, also requested costs.

The City opposed both requests.

The court awarded partial indemnity costs to the Gendrons, finding the City's opposition to the underlying injunction motion to be without merit.

TD Bank's request for costs was denied, as it was a non-party with a mere "watching brief" whose counsel's attendance added nothing to the argument.

The Gendrons moved for an interlocutory injunction to prevent the City of Kawartha Lakes from selling their home, which was subject to a priority lien under the Environmental Protection Act.

The City opposed, arguing estoppel, res judicata, failure to meet the injunction test, and lack of an undertaking for damages.

The court granted the prohibitive injunction, finding serious issues to be tried regarding the lien's validity and amount, irreparable harm to the Gendrons and TD Bank, and the balance of convenience favoring the Gendrons.

The court also ordered priority for the underlying motions.