Martin Sclisizzi

Costs were determined following motions concerning the validity of minutes of settlement and enforcement of judgment.

A defendant by counterclaim had unsuccessfully sought to set aside settlement minutes on the basis of alleged mental incapacity, while the bank successfully obtained judgment under those minutes.

The bank sought substantial indemnity costs exceeding $64,000, arguing the motion lacked merit and required significant preparation including expert psychiatric evidence.

The court held that although the bank was successful, substantial indemnity costs were not warranted and awarded partial indemnity costs of $19,900 against the unsuccessful moving party.

A co-defendant who supported the bank’s position was denied any costs because his participation duplicated the bank’s submissions.

The appellant, a private school, expelled a student for smoking marijuana in the school residence.

The student and his parents successfully applied to the Divisional Court for judicial review of the expulsion decision under the Judicial Review Procedure Act (JRPA).

The school appealed, arguing the Divisional Court lacked jurisdiction.

The Court of Appeal allowed the appeal, holding that the expulsion decision was governed by the private contract between the parents and the school, not public law.

The decision lacked a sufficient public dimension to be subject to public law remedies under the JRPA.

A cheque‑cashing company sought to recover losses arising from a fraudulent mortgage scheme and the negotiation of a bank draft bearing a forged endorsement.

The plaintiff alleged negligence and fraud against multiple parties involved in the mortgage transaction, including the property owner, a lawyer, a lender, and a relative of the homeowners.

The court found that the homeowners were not involved in the fraud and dismissed claims against them and other defendants, including the lawyer and lender.

The court declined to recognize a novel duty of care owed by the drawer of a bank draft to a subsequent negotiator and held that the plaintiff’s loss arose from the strict liability tort of conversion when the draft with a forged endorsement was negotiated.

Liability was established only against the relative who participated in the mortgage fraud.

The applicant sought declarations relating to a $2 million bank draft that had been lost after issuance.

It requested that the draft be declared void and that the issuing bank return the funds without requiring an indemnity.

The respondent bank argued that the draft created ongoing risk because it remained a negotiable instrument and could potentially be presented through fraud, mistake, or negligence.

The court held that the transaction should remain risk‑free to the issuing bank and that commercial certainty favours requiring indemnity and security before issuing a replacement instrument.

The application was dismissed, with the bank remaining willing to issue a duplicate draft upon provision of adequate indemnity and security under the Bills of Exchange Act.

The appellant appealed a summary judgment decision regarding the deduction of a hypothetical tax on deferred compensation received after his retirement.

The Court of Appeal agreed with the motion judge that the hypothetical tax applied to income earned during employment and received in retirement.

The appeal was dismissed with agreed costs awarded to the respondent.

The applicants sought judicial review of a private school's decision to expel a student after he admitted to smoking marijuana in a dormitory room.

The Divisional Court held that it had jurisdiction to review the decision because the school was created by a Special Act, making its disciplinary decisions an exercise of a statutory power.

The majority quashed the expulsion decision, finding a breach of procedural fairness because the student and his parents were denied an adequate opportunity to be heard regarding the appropriate sanction.

The court declined to order the school to confer a diploma, remitting the matter to the Head of School.

The plaintiff sued the defendant bank for losses resulting from forged cheques due to employee dishonesty.

The bank's motion for summary judgment to dismiss the action based on the banking contract was refused.

The bank sought leave to appeal the refusal.

The Divisional Court dismissed the motion for leave to appeal, finding that while there may have been good reason to doubt the correctness of the motion judge's decision, the issues involved contractual interpretation specific to the parties and did not raise matters of public importance.

The applicant sought summary judgment requiring his former employer to return amounts withheld as hypothetical tax from post‑retirement deferred compensation payments.

The dispute concerned whether stock‑based deferred compensation received after retirement retained its character as employment income and therefore remained subject to the employer’s contractual tax equalization policy for expatriate executives.

The court held that, under the employment contract and the Income Tax Act, deferred compensation arising from employment remains employment income regardless of when it is received.

Because the applicant had agreed that employment income, including stock‑based compensation, would be subject to hypothetical tax, the employer was entitled to continue applying the policy after retirement.

The motion and underlying claim were dismissed.

The respondent sued the appellant bank in conversion after a fraudulent employee deposited $4,000,000 in forged cheques into accounts at the bank.

The appellant sought to amend its statement of defence to plead estoppel by negligence, arguing the respondent was negligent in failing to detect the fraud.

The Court of Appeal upheld the lower courts' refusal to allow the amendment, confirming that conversion is a strict liability tort and that recognizing a new duty of care or a defence of estoppel by negligence would inappropriately alter the allocation of risk in the banking system.

The appeal was allowed only to the extent of permitting the appellant to plead defences arising from the respondent's actual knowledge of the fraud.

The representative plaintiff brought a proposed class action against the defendant bank for unpaid overtime, alleging breach of contract, unjust enrichment, and negligence due to systemic policies requiring pre-approval for overtime and inadequate record-keeping.

The motion judge certified the action, and the Divisional Court upheld the certification.

On appeal, the Court of Appeal upheld the certification of most common issues and agreed that a class proceeding was the preferable procedure.

However, the Court allowed the appeal in part, striking the common issue regarding the aggregate assessment of damages under s. 24(1) of the Class Proceedings Act, finding that damages could not reasonably be calculated without proof by individual class members.

The defendant bank brought a motion for summary judgment dismissing claims for negligence, breach of contract, and conversion arising from a corporate employee’s long-running cheque forgery scheme.

The bank relied on verification and limitation of liability clauses in a financial services agreement requiring the customer to review statements and report errors within 30 days.

The court held that the contractual provisions, the surrounding factual matrix, and the interaction with s. 48 of the Bills of Exchange Act raised genuine issues of fact and mixed fact and law.

Issues included the interpretation of the agreement, alleged representations made by bank officials, the plaintiff’s internal fraud controls, and whether suspicious circumstances should have alerted the bank.

As a result, the court found the matter unsuitable for summary judgment and required a trial.

The appellant's appeal under the Municipal Conflict of Interest Act was previously quashed.

The court received written submissions on costs.

The respondent sought substantial indemnity costs of $35,779.80 or partial indemnity costs of $20,534.60.

The court found no basis for substantial indemnity costs, as the appellant's dilatory conduct did not rise to the level of reprehensible conduct.

However, the respondent was entitled to costs for steps taken to move the appeal forward, including motions to expedite and dismiss for delay.

The court fixed costs at $10,000 inclusive of disbursements and HST.

The appellant vendor appealed an order granting specific performance of a real estate contract to the respondent purchaser.

The appellant argued the respondent was disentitled to equitable relief due to 'unclean hands' for swearing a false affidavit regarding his status as a nominee, and that the property was not objectively unique.

The Court of Appeal dismissed the appeal, finding the respondent's conduct did not prejudice the appellant and the property was uniquely suited to the intended commercial use, making damages an inadequate remedy.

The appellants appealed the trial judge's assessment of damages and dismissal of claims regarding a fraudulent kick-back scheme perpetrated by two officers of the appellant company and its suppliers.

The Court of Appeal found the trial judge erred in deducting advances made by the officers from the damages awarded for secret commissions, as the officers had no authority to borrow money from the bank to repay themselves.

The damages against the officers and their company were increased to $73,641.45.

The court also set aside a counterclaim judgment in favour of a supplier, finding he had already been fully paid.

The remainder of the appeal, including claims against the bank for unauthorized withdrawals and altered documents, and claims for punitive damages, was dismissed.

The respondent lawyer acted for a purchaser in a fraudulent real estate transaction and delivered a trust cheque payable to the true owner.

The fraudster forged the endorsement and deposited the cheque into an account at the appellant bank.

The respondent sued the appellant bank for conversion and was granted summary judgment.

On appeal, the Court of Appeal affirmed the decision, holding that under the Supreme Court's ruling in Boma, a collecting bank is strictly liable in conversion for paying out on a forged endorsement.

The court rejected the bank's defences under the Bills of Exchange Act, finding the payee was not fictitious and the bank was not a holder in due course.

The appellant, a Senior Vice-President at the respondent bank, appealed the dismissal of his constructive dismissal claim.

The claim was based on a 13% reduction in his variable compensation package between 2001 and 2003.

The Court of Appeal upheld the trial judge's findings that the appellant's compensation was not fixed, that the bank was entitled to align his compensation with other executives, and that the reductions did not constitute a fundamental breach of the employment contract.

The appeal was dismissed.

The defendants, eight major financial institutions, successfully defended an appeal of a decision denying certification of a class action regarding mortgage contracts.

The defendants sought their costs of the appeal.

The plaintiffs argued that no costs should be awarded, asserting the proceeding was a test case and involved a matter of public interest under section 31(1) of the Class Proceedings Act.

The Divisional Court rejected the plaintiffs' arguments, finding the case was not a test case, did not raise a novel point of law, and was not a matter of public interest, but rather involved individual commercial mortgage contracts.

The court awarded the defendants modified partial indemnity costs fixed at $20,000 per defendant.

The union appealed a Divisional Court decision that quashed an Ontario Labour Relations Board certification order and remitted the matter for reconsideration.

The Divisional Court had found the Board erred in concluding it lacked jurisdiction to consider the employer's late-filed response.

Before the appeal was heard, the Board reconsidered the matter, accepted the late response, and revoked the certification.

The Court of Appeal dismissed the union's appeal as moot, finding no live controversy remained and declining to exercise its discretion to hear the case on the merits.

The appellants appealed the dismissal of their motions to certify eight separate class proceedings against various financial institutions.

The claims alleged that the respondents incorrectly interpreted mortgage provisions regarding partial prepayment rights and early discharge penalties.

The Divisional Court upheld the motion judge's decision, finding that the pleadings failed to disclose a cause of action as they relied on implied terms not supported by the express language of the mortgages.

The court also agreed that the proposed classes were overly broad, individual issues overwhelmed any common issues, and a class proceeding would be unmanageable and not the preferable procedure.

The appellant employer appealed a trial judgment finding wrongful dismissal and awarding 22 months' notice, eight months' Wallace damages, and $25,000 in punitive damages.

The Court of Appeal upheld the finding of no cause for termination and the 22-month notice period.

However, the Court reduced the Wallace damages to four months, finding the employer did not act in bad faith by pursuing unproven allegations of dishonesty, withholding a reference letter, or couriering the respondent's belongings.

The $25,000 punitive damages award was upheld due to the employer's oppressive conduct in blacklisting the respondent's relatives and unlawfully deducting funds from her account at another bank.

The appeal was allowed in part.