Marvin Joel Huberman

The moving party sought to strike the plaintiff’s Superior Court action as an abuse of process, arguing that the plaintiff’s earlier Small Claims Court proceeding—later dismissed as abandoned—barred the new action.

The court held that the Small Claims Court dismissal was administrative and not a determination on the merits.

The endorsement from the settlement conference did not constitute a binding order requiring transfer to the Superior Court, and the defendant had not demonstrated prejudice.

Applying the flexible abuse of process doctrine, the court concluded that allowing the claim to proceed would not undermine the administration of justice.

Following dismissal of the plaintiff's action for slander, malicious prosecution and intentional infliction of mental distress arising from an arrest and stayed charges, the successful defendants sought partial indemnity costs of about $40,000.

Applying the Rule 57.01 factors, the court reduced the claimed amount, noting the relatively short trial, the constructive conduct of the self-represented plaintiff, and expansion of the defendants' witness list beyond the pre-trial disclosures.

The court awarded the defendants $20,000 all inclusive on a partial indemnity basis.

The plaintiff was granted up to twelve months to pay.

The plaintiff brought a civil action for slander, malicious prosecution, and intentional infliction of mental suffering arising from his arrest at a cheque‑cashing store after attempting to cash a cheque that store staff believed to be fraudulent.

The court found that although defamatory words were communicated to police and employees, the statements were protected by qualified privilege and there was no proof of malice.

The malicious prosecution claim failed because the defendant did not initiate the prosecution and reasonable and probable grounds existed for the police investigation and charges.

The claim for intentional infliction of mental suffering also failed because the defendant’s conduct was not flagrant or outrageous and causation of the plaintiff’s psychiatric condition was not established.

In addition, the claim was statute‑barred under the Limitations Act, 2002 because the plaintiff did not prove incapacity to suspend the limitation period.

The plaintiff sought specific performance of an agreement of purchase and sale for a gas station property after the vendor forcibly repossessed the property while the purchaser was in possession pending final closing.

The defendant argued the agreement was unenforceable due to misidentification of the vendor, non‑payment of deposits, unpaid supplier accounts, lack of readiness to close, and absence of uniqueness of the property.

The court found the misidentification of the vendor was an inadvertent drafting error, that the plaintiff had substantially paid the required deposits and complied with the agreement, and that the vendor had no justification to retake possession.

The property was sufficiently unique to justify specific performance and the equities favoured the purchaser.

The court ordered specific performance and directed a reference to account for deposits, operating profits, and inventory values prior to closing.

The defendant brought a motion for summary judgment seeking a declaration of ownership by adverse possession over a cottage property and a prescriptive easement over a right of way.

The property was originally owned by the defendant's father, who mistakenly believed he had gifted it to the defendant.

The court found that the defendant established adverse possession over most of the cottage property due to mutual mistake, which negated the requirement for inconsistent use.

However, the claim for adverse possession over an adjacent strip of land was dismissed for lack of actual possession.

The court also granted the defendant a prescriptive easement over the right of way based on over 40 years of uninterrupted use.

The appellant appealed an order striking its claim and dismissing its action.

The Court of Appeal had previously adjourned the appeal pending the outcome of related judicial review proceedings in the Divisional Court.

After the Divisional Court dismissed the judicial review application and leave to appeal was denied, the Court of Appeal dismissed this appeal, finding that the allegations in the appellant's pleadings were in substance the same as those rejected by the Divisional Court.

The court held that allowing the re-litigation of those allegations in a second proceeding would be an abuse of process.

The defendants appealed a Master’s order compelling them to answer discovery questions concerning legal advice they had received from government lawyers regarding the refusal to register private career colleges under the Private Career Colleges Act, 2005.

The Master held that solicitor‑client privilege had been waived because the defendants referenced legal advice during discovery and allegedly placed their state of mind in issue.

The court held that merely acknowledging receipt of legal advice, or explaining that conduct occurred after receiving advice, does not waive privilege.

Waiver arises only where a party relies on legal advice as a substantive element of a claim or defence.

As the defendants did not rely on legal advice to establish their good faith defence, privilege was not waived and the Master’s order was set aside.

The appellant appealed an order regarding the adequacy of pleadings and whether the respondent was immune from suit.

The Court of Appeal noted that pending judicial review applications in the Divisional Court raised many of the same procedural errors alleged in the pleadings.

The Court adjourned the appeal to await the Divisional Court's decision, as it could impact whether the appellant's pleading could survive based on issue estoppel or res judicata.

The applicant sought judicial review of an Ontario Securities Commission decision ordering the disclosure of his compelled evidence to co-respondents in a regulatory proceeding.

The applicant argued the evidence was privileged based on an undertaking from Commission staff and that the Charter applied due to the risk of quasi-criminal proceedings.

The Divisional Court dismissed the application, finding the Commission's interpretation of the undertaking was reasonable and that the Charter did not apply to the administrative proceeding.

The appellants appealed an order regarding an arbitration agreement.

The Court of Appeal found that the record did not clearly show the arbitration agreement was incapable of performance.

The court varied the motion judge's order, referring the matter back to the Crown Heights Beth Din to proceed with the arbitration on a fixed timetable or clearly indicate its refusal to deal with the matter.

Costs were awarded to the respondents.

The Ontario Human Rights Commission brought a motion to amend a human rights complaint to add three new allegations of harassment in employment and the ground of reprisal.

The respondent, Dofasco Inc., opposed the motion, arguing that the Commission's failure to investigate or conciliate these allegations prior to referral deprived it of statutory protections and that the late notice caused prejudice amounting to an abuse of process.

The Board of Inquiry granted the motion, holding that it has jurisdiction to hear a matter de novo and amend complaints, provided natural justice is respected.

The Board found that Dofasco failed to demonstrate actual prejudice of such magnitude as to impact the fairness of the hearing, noting that Dofasco would have ample time to prepare its defence before the hearing on the merits commenced.

The Ontario Human Rights Commission brought a motion to amend a human rights complaint to add three new allegations of harassment and the ground of reprisal.

The respondent, Dofasco Inc., opposed the motion, arguing that the late notice of the new allegations caused prejudice amounting to an abuse of process and a denial of natural justice.

The Board of Inquiry granted the motion, finding that the Board has the jurisdiction to amend a complaint and that the respondent failed to demonstrate actual prejudice of such magnitude as to impact the fairness of the hearing.

The respondents brought a motion to dismiss a human rights complaint, arguing that a four-year delay by the Commission and the existence of multiple proceedings amounted to an abuse of process and a violation of their section 7 Charter rights.

The Board of Inquiry dismissed the motion, finding that section 7 of the Charter does not apply to human rights proceedings.

The Board also held that the respondents failed to demonstrate actual prejudice resulting from the delay, as their claims regarding unavailable witnesses and lost documents were speculative.

Furthermore, the complainant was entitled to pursue her rights in multiple forums, which did not constitute an abuse of process.

Dofasco brought a motion for the production of the complainant's medical files, WSIB file, CPP file, and income tax returns in a human rights proceeding.

The Commission opposed the motion, arguing it was overly broad and a fishing expedition.

The adjudicator granted the motion in part, finding that the documents were arguably relevant to Dofasco's accommodation defence under section 17 of the Code and to the quantum of damages.

The complainant was ordered to provide consents for the release of the requested files and to produce edited income tax returns.

The complainant, Martin Entrop, and the Ontario Human Rights Commission challenged Imperial Oil's Alcohol and Drug Policy, alleging it discriminated on the basis of handicap.

The Board of Inquiry found that drug abuse and dependence constitute a handicap under the Human Rights Code.

The Board held that the policy's requirements for mandatory disclosure of past substance abuse, reassignment, and onerous reinstatement conditions were overly broad and unlawful.

Furthermore, the Board ruled that pre-employment and random drug testing, as well as random alcohol testing, were unlawful because the employer failed to prove that positive tests correlate with actual impairment on the job, thus failing to establish a bona fide occupational requirement under section 17 of the Code.

The complainant, a senior operator in a safety-sensitive position, disclosed a past alcohol problem pursuant to the employer's new Alcohol and Drug Policy.

Despite having been abstinent for over seven years, he was reassigned to a lower position and later reinstated subject to rigorous, unannounced testing and controls.

The Board of Inquiry found that past alcoholism constitutes a handicap under the Human Rights Code.

The Board held that the employer's mandatory self-disclosure, automatic reassignment, and excessive reinstatement controls amounted to direct discrimination.

While freedom from alcohol impairment is a bona fide occupational requirement for safety-sensitive jobs, the employer failed to prove that the complainant was incapable of performing his duties or that the intrusive measures were reasonably necessary.

The employer also failed to meet its duty to accommodate, as less drastic means of assessment, such as supervisory monitoring, were available.

The complainant, who had previously been reassigned due to past alcohol dependency, sought to expand the scope of his human rights complaint to challenge the respondent's random drug testing policy.

The complainant argued he was at risk of discipline because he took a prescription medication containing codeine for a knee injury.

The Board of Inquiry granted the motion to expand the hearing's scope, finding the complainant had standing to challenge the policy.

The Board also allowed an amendment to the complaint to allege that the distribution of the policy violated s. 13 of the Human Rights Code.