M. Dale Parayeski

The defendant insurer brought a motion for summary judgment seeking dismissal of portions of the plaintiff’s claim relating to non-earner accident benefits, breach of contract, and extra-contractual claims including mental distress, bad faith, and punitive damages.

The insurer argued that the plaintiff had not submitted a valid application for non-earner benefits because disability certificates did not confirm that the statutory disability test was met.

The court rejected this argument as an overly literal interpretation of the application requirements, finding that the meaning of the physician’s responses and the effect of mediation could not be resolved on the motion and required a trial.

However, the court granted summary judgment dismissing the extra-contractual claims, finding no evidence of malfeasance or bad faith in the insurer’s claims handling.

The motion therefore succeeded in part.

Following two civil trials with divided outcomes, certain defendants and a corporate plaintiff sought costs relying on a settlement offer they argued was more favourable than the trial results.

The court considered the offer alongside the broader Rule 57.01 factors, including the conduct of the litigation and the proportionality of the proceedings.

The court criticized both sides for launching actions without adequate evidentiary bases, pursuing exaggerated damages claims, and unnecessarily prolonging the trials with marginally relevant evidence.

After reviewing the claimed fees and disbursements, the court reduced the amounts sought and fixed costs globally.

Costs of $50,000 all inclusive were awarded to the moving parties against certain plaintiffs, with a small notional costs award payable to additional defendants.

The franchisor defendants brought a motion for summary judgment seeking dismissal of a franchisee action and judgment on a counterclaim following termination of four franchise agreements without notice.

The franchisees alleged breaches including failure to provide notice and violation of the duty of fair dealing under the Arthur Wishart Act.

The court held the terminations were justified due to substantial defaults amounting to acts of bankruptcy and rejected arguments based on estoppel and statutory good faith.

The plaintiffs also failed to produce basic financial documentation capable of proving lost profits, rendering their damages claim unsustainable.

Summary judgment was granted dismissing the action, while the counterclaim was left for trial due to disputed facts.

The plaintiff moved for summary judgment to recover funds allegedly loaned or invested in the defendant corporation and evidenced by promissory notes.

The defendant opposed the motion and sought summary judgment dismissing the claim on the basis that it was statute‑barred.

The court held that the limitation period under the Limitations Act expired in February 2008 following a demand for payment in 2006 and that no valid acknowledgment occurred before the expiry of the limitation period.

A purported later promissory note relied upon by the plaintiff was found to be a forgery and therefore could not revive the claim or constitute an acknowledgment of debt.

The plaintiff’s claim, whether framed as enforcement of the promissory notes or as a loan, was statute‑barred and equitable relief was unavailable due to the plaintiff’s lack of clean hands.

The plaintiffs alleged the existence of a partnership in a training and e‑learning business and sought recognition of partnership interests, constructive trust, and unjust enrichment remedies.

The defendants denied that any partnership agreement had been finalized.

After a lengthy trial turning largely on credibility, the court found that no partnership agreement had ever been concluded, noting the absence of agreed essential terms and the lack of capital contributions.

The court also rejected equitable claims, finding the evidence unreliable and noting that the alleged payments were in fact kickbacks rather than partnership income.

In a related action, the corporate plaintiff failed to establish defamation or intentional interference with economic relations arising from communications to college clients.

Following the dismissal of the applicant's motion for an extension of time to seek leave to appeal, the respondents sought their costs.

The applicant argued it should be shielded from costs as a public interest litigant, but the court found it failed to provide sufficient evidence to meet the test.

The court fixed costs at $15,000 for Preston Sand and $9,000 for the Township.

Preston Sand's request to have costs awarded personally against the individual members of the applicant corporation was dismissed, as it failed to prove the corporation was a 'man of straw' and failed to provide adequate notice to the non-parties.

The accused brought an application to quash a search warrant and exclude evidence of drugs found in his apartment, alleging a breach of his s. 8 Charter rights.

He argued the Information to Obtain (ITO) lacked full and frank disclosure and relied on unreliable confidential informants.

The court excised certain unconstitutionally obtained information from the ITO but concluded that the authorizing judge could still have granted the warrant based on the remaining record.

The court also noted that even if a breach had occurred, the evidence would not be excluded under s. 24(2).

The application was dismissed.

The applicant sought an extension of time to file a motion for leave to appeal a decision of the Ontario Municipal Board regarding zoning by-law amendments for an aggregate operation.

The court applied the Enbridge Gas test and found that while the applicant had a bona fide intention to appeal, the explanation of inadvertence for the delay was insufficient.

Furthermore, the proposed appeal challenged the Board's factual weighing of prejudice in excluding expert testimony, which did not raise a meritorious question of law.

The motion for an extension of time was dismissed.

The plaintiff moved to restore a long-delayed solicitor's negligence action to the trial process and to have three related actions arising from the same motor vehicle accident tried together.

Applying the restoration-to-trial-list framework, the court held that the responding defendants had participated in parts of the delay and that the blame did not rest solely with the plaintiff.

The court rejected claims of prejudice based on a clerk's fading memory, missing damages documentation, and the absence of a final expert opinion, finding the alleged prejudice hypothetical or remediable under the Rules.

The motion was granted and all three matters were directed back to assignment court for possible placement on the long trial list.

On competing summary judgment motions arising from the sale and continuation of a news kiosk franchise, the plaintiffs sought statutory recission of a later franchise agreement based on non-disclosure under the Arthur Wishart Act.

The court held that the October 2012 agreement was a new franchise agreement, not merely a renewal, extension, or transfer unaffected by the franchisor.

The franchisor failed to establish the claimed exemptions under ss. 5(7)(a)(iv), 5(7)(f), and 5(7)(g)(ii), particularly because the agreement contemplated payment of a franchise fee and involved new parties.

The plaintiffs' August 2013 rescission was within the two-year period under s. 6(2).

The plaintiffs obtained a declaration of entitlement to statutory recission and the defendants' motion to dismiss was denied.

An applicant sought enforcement of Letters Rogatory issued by a United States district court requesting video testimony from Ontario residents in aid of a Florida civil action concerning alleged unsolicited fax advertisements.

The respondents argued the request amounted to a fishing expedition and noted a partial stay of discovery in the underlying action.

Applying the six‑factor test for enforcement of foreign letters rogatory, the court held that the requested evidence was likely relevant, potentially necessary for trial, and not otherwise obtainable.

The court found the request was not contrary to public policy and was not unduly burdensome.

The application to compel examination under oath was granted.

Following a successful summary judgment motion dismissing a third party claim and the consequential dismissal of a fourth party claim, the court addressed costs.

The third party sought costs from the defendant and indemnification for any costs owing to the fourth party.

The court held that the plaintiff’s limited involvement did not justify awarding or requiring costs at this stage and deferred any cost consequences between the plaintiff and defendant to the trial of the main action.

However, the court determined that the third and fourth parties should not wait until the conclusion of the main action to recover their costs.

The defendant was ordered to pay the third and fourth parties’ costs on a partial indemnity basis, with amounts fixed by the court for fairness and proportionality.

Following a trial in a civil action based on the tort of conversion, the court addressed the quantum of costs payable after awarding damages of $270,735 to the plaintiff.

The defendant conceded liability for costs on a partial indemnity scale but disputed the amount claimed.

The court considered the factors in Rule 57.01(1) of the Rules of Civil Procedure, including proportionality, counsel time spent, and the adequacy of disbursement evidence.

Concerns were raised about duplication of effort after the plaintiff changed counsel and insufficient breakdown of certain disbursements.

The court fixed costs at $75,000 in fees plus HST and $5,000 in disbursements inclusive.

The appellant appealed a summary conviction for operating a motor vehicle while his blood‑alcohol level exceeded the legal limit.

He argued that the trial judge erred in rejecting a Charter s. 10(b) claim, refusing disclosure of technical "COBRA" data relating to the approved instrument used to measure breath samples, and finding that missing maintenance records did not rebut the statutory presumption of accuracy under the Criminal Code.

The Superior Court held that the trial judge’s credibility findings, evidentiary rulings, and interpretation of the statutory presumption were supported by the evidence and consistent with applicable law.

The absence of maintenance records did not establish malfunction or improper operation of the approved instrument.

No reversible error was demonstrated.

Following a family law trial, the court determined whether a father’s parenting time should expand to include overnight access with the parties’ two young children.

The mother opposed expansion citing concerns about the father’s prior mental health issues, unfamiliar living arrangements, and the children’s emotional reactions.

Evidence showed the father had undertaken counselling, improved stress management, and that the Children’s Aid Society had no safety concerns regarding overnight access.

The court found the evidence supported a gradual expansion of parenting time and that the mother’s concerns, while sincere, were largely speculative.

The court held that overnight access was in the children’s best interests and ordered a staged increase in the father’s parenting time including alternate weekend overnights and summer access.

The accused applied for a stay of proceedings after conviction for internet luring, alleging police entrapment arising from an undercover officer posing online as a 14‑year‑old.

The court considered the entrapment framework set out in R. v. Mack, including whether police provided an opportunity to commit an offence without reasonable suspicion, whether the investigation was conducted pursuant to a bona fide inquiry, and whether police induced the offence.

Although the court found that the undercover communications constituted an opportunity to commit the offence, reasonable suspicion arose shortly after the exchanges began when the accused continued sexually explicit communication after being told the persona was 14 years old.

The court further held the investigation was a bona fide inquiry and that the police conduct did not amount to inducement.

The application for a stay based on entrapment was therefore dismissed.

Following a trial concerning an alleged fundamental breach of a commercial lease, the court issued a separate ruling addressing costs.

Although the plaintiff succeeded in obtaining judgment and defeating the counterclaim, the success was characterized as mixed because the damages awarded were significantly lower than claimed and several claims were dismissed.

The court also criticized both parties and their principals for unreliable evidence and a poorly drafted lease that unnecessarily complicated the trial.

However, the plaintiff had delivered a Rule 49 offer to settle that was bettered by the trial result.

Considering the offer and the factors under the Rules of Civil Procedure, the court fixed costs payable by one defendant to the plaintiff at $50,000 all inclusive.

The applicant brought a motion seeking to enforce an alleged settlement arising from negotiations concerning a construction lien and mortgage priority dispute.

The court applied the two‑step analysis under Rule 49 of the Rules of Civil Procedure, first determining whether the parties had reached an agreement and then whether any such agreement should be enforced.

The court held that there was no meeting of the minds because the correspondence relied upon constituted, at most, a counteroffer and contained ambiguous and inconsistent terms.

Although the court found that the respondent’s alleged solicitor had ostensible authority to negotiate and potentially bind the respondent, the absence of agreement on essential terms was fatal.

The motion to enforce the alleged settlement was dismissed.

Following dismissal of a grandparent access application on summary judgment, the court determined costs.

The successful respondents had served an offer to settle inviting the applicant to withdraw the application and agree to mutual non‑disparagement with each party bearing their own costs.

The offer was not accepted and the application was dismissed in its entirety.

Applying the usual Rule 49 cost consequences, the court held the respondents were entitled to partial indemnity costs up to the date of the offer and substantial indemnity thereafter.

The court fixed all-inclusive costs at $7,500 payable by the applicant.

A manufacturing company sued a scrap metal dealer in conversion after stolen industrial dye blocks and related materials were sold to the dealer by a third party thief.

The court held that conversion is a tort of strict liability and that the dealer was liable for purchasing and reselling property belonging to the plaintiff, even if done in good faith.

Arguments that the plaintiff had been on notice of potential theft or contributorily negligent were rejected.

Due to incomplete records and uncertainty regarding the precise quantity of stolen goods, the court approximated the amount converted and assessed damages based primarily on replacement metal cost and associated fabrication expenses rather than scrap value.

Judgment was awarded for damages reflecting the value of converted dye blocks and related losses.