Michael A. Polvere

The plaintiff brought a motion to set aside an administrative dismissal of her claim filed in 2018 concerning ownership of a thirty-foot strip of land.

The plaintiff alleged she purchased the property in 1994 from the prior owner, but the defendant acquired title in 2014.

After filing her claim in 2018, the plaintiff took no further action for approximately six years until the registrar administratively dismissed the claim in Fall 2024.

The court applied the four-factor test from Scaini v. Prochnicki to assess whether the dismissal should be set aside, considering whether there was a satisfactory explanation for delay, whether the delay was caused by inadvertence, whether the plaintiff moved promptly to set aside the dismissal, and whether the defendant suffered prejudice.

The court found the plaintiff had not met her onus and dismissed the motion.

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $7,700 to the responding party.

The moving party sought costs following an oral ruling that granted an adjournment to seek directions due to the responding party's lawyer's behaviour during an examination.

The court fixed costs at $11,242, including costs thrown away.

Finding that the lawyer's conduct—passing a note to his client during the examination and unilaterally taking a break for a full discussion—crossed the line, the court ordered the lawyer to personally pay 50% of the costs award.

The Court of Appeal for Ontario considered the issue of costs following an appeal between the Township of Adelaide Metcalfe and the Municipality of Strathroy-Caradoc.

The court determined that there would be no costs of the appeal, as the determinative issue was not raised before the Divisional Court.

The costs previously ordered by the Divisional Court were set aside.

The plaintiff, Liberty Tax Service, Inc., sought an interlocutory injunction to restrain the defendants from violating post-termination non-compete and non-solicitation obligations under a franchise agreement, and to compel the return of client records.

The court found a strong prima facie case of competition but not of solicitation, and ordered the return of documents, but declined to grant an interlocutory injunction due to the lateness in the tax season and the potential prejudice to innocent clients.

The appellant municipality appealed a Divisional Court order that quashed an Ontario Land Tribunal decision assuming jurisdiction over a dispute regarding a municipal servicing agreement.

The Court of Appeal held that the Tribunal's decision was interlocutory, as it only assumed jurisdiction on a prima facie basis and deferred the final determination of forum to the Superior Court.

Because the Ontario Land Tribunal Act only permits appeals of final decisions, the Divisional Court lacked jurisdiction to hear the appeal.

The appeal was allowed and the Tribunal's order was restored.

The Court of Appeal for Ontario heard an appeal concerning a "Lender Fee" in a multimillion-dollar loan agreement.

The motion judge had ruled that the balance of the fee was an unenforceable penalty clause and granted relief against forfeiture, also suggesting it was not earned as the loan was not advanced.

The Court of Appeal reversed this decision, holding that the Lender Fee was consideration for obtaining the loan commitment, not a stipulated remedy for breach, and therefore the doctrines of unenforceable penalty clauses and relief against forfeiture did not apply.

The court further clarified that the fee was not contingent on the loan being advanced based on the contract's terms.

The appeal was allowed, ordering the balance of the fee to be paid to the lender.

The defendants brought a motion under section 137.1 of the Courts of Justice Act to dismiss the plaintiff's action for defamation and intentional interference with economic relations.

The action arose from tweets and newspaper comments made by the defendants criticizing the plaintiff nursing home's COVID-19 policies and care of a resident.

The court found the expression related to a matter of public interest.

The plaintiff failed to demonstrate that its claim had substantial merit and that the defendants had no valid defences.

Furthermore, the court held that the public interest in protecting the defendants' expression substantially outweighed any minimal harm suffered by the plaintiff.

The motion was granted and the action was dismissed.

The plaintiff, a trucking broker, sought summary judgment against two defendant carriers for damages arising from the theft of a poultry shipment, including the value of the goods and significant customs duties levied due to the theft occurring in Canada.

The defendants denied liability, citing lack of notice and unforeseeable damages.

The court dismissed the plaintiff's motion for summary judgment, finding that the factual matrix, including conflicting evidence on sub-brokering authorization, untested expert opinions, and unresolved issues regarding notice of claim under the Carriage of Goods Regulation, was not suitable for disposition under Rule 76 simplified procedure.

The matter was directed to proceed to trial.

The appellant municipality appealed a decision of the Ontario Land Tribunal asserting jurisdiction over a dispute regarding a water and sewage servicing agreement with the respondent municipality.

The Divisional Court found that the Tribunal erred in its interpretation of the agreement's termination clause by failing to apply a pragmatic and common-sense approach and by considering subsequent conduct without finding ambiguity.

Because the agreement had validly terminated, the statutory basis for the Tribunal's jurisdiction under the Municipal Act was removed.

The appeal was granted and the Tribunal's order was quashed.

The appellants appealed an interlocutory order requiring them to continue a joint retainer with an accountant and to produce documents to assist the accountant.

The appellants had lost confidence in the accountant and purported to terminate the relationship.

The Divisional Court allowed the appeal, finding that the motion judge committed a palpable and overriding error by effectively ordering specific performance of a professional relationship where the client had lost confidence.

As the order for the continued retainer was quashed, the order for document production was also set aside.

This case involved cross-motions for summary judgment concerning a terminated mortgage commitment letter.

The plaintiffs (developer) sought the return of a lender fee, alleging the defendants (lender) made unreasonable demands and acted in bad faith, leading to the termination.

The defendants sought the outstanding balance of the fee.

The court determined that a $100,000 deposit paid by the developer was a valid liquidated damages clause and could be retained by the lender.

However, the remaining $326,500 of the lender fee was deemed an unenforceable penalty, as the lender provided insufficient evidence of damages incurred for work not performed.

The court granted the plaintiffs' motion for summary judgment for the $326,500 and dismissed the defendants' motion.

The employee, originally a co-founder and CEO, was dismissed without cause in 2017.

The employer relied on a 2005 employment contract to limit termination pay.

The motion judge found the 2005 contract unenforceable under the changed substratum doctrine due to fundamental increases in the employee's responsibilities over the years, awarding 18 months' reasonable notice and damages for lost bonus entitlements.

The Court of Appeal dismissed the employer's appeal, upholding the application of the changed substratum doctrine and the award for lost bonus.

The Court allowed the employee's cross-appeal in part, finding the motion judge erred by deducting the entire pre-dismissal bonus payment from the damages award, and increased the damages accordingly.

The moving parties brought a motion for leave to appeal an order dated July 15, 2022.

The Divisional Court dismissed the motion for leave to appeal.

In the absence of a costs outline, costs were fixed at a reduced amount of $2,500 payable to the responding parties.

The appellant appealed a motion judge's decision that there was no limitation period on the respondent's right to enforce a 1999 construction lien judgment due to the transitional provisions of the Limitations Act, 2002.

The respondent cross-appealed on issues including the vacating of the lien, characterization of set-off claims, and costs.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the transitional provisions because the relevant 'proceeding' was the enforcement action, not the original suit.

The cross-appeal was allowed only to correct the formal order, removing findings of fact improperly included as orders.

The plaintiffs moved for a Certificate of Pending Litigation (CPL) against a 108-acre parcel of land.

The plaintiff had agreed to purchase five acres of the land from one of the co-owners for $750,000 and advanced $640,000 before the defendant purported to terminate the agreement.

The defendant argued the agreement was unenforceable under the Statute of Frauds and the Planning Act.

The court found a triable issue regarding the plaintiffs' interest in the land and held that the equities favoured granting the CPL, as the property was unique and the plaintiffs had advanced 85% of the purchase price.

The defendants brought a motion for leave to appeal a motion judge's decision.

The Divisional Court granted leave to appeal on two specific questions: whether the motion judge erred in ordering that the joint retainer of the accountant continue, and whether the motion judge erred in ordering the production of documents under the retainer agreement.

Leave to appeal was otherwise dismissed, with costs reserved to the panel hearing the appeal.

MediPharm brought an action against Hexo for unpaid invoices totaling $9,802,032.78 under a cannabis resin supply agreement.

Hexo counterclaimed against MediPharm for breach of contract and bad faith, and against Peter Hwang, a former director of the acquired company, for breach of fiduciary duty.

MediPharm and Hwang brought motions for summary judgment.

The court granted the motions, finding no genuine issue for trial.

Hexo failed to adduce evidence of bad faith by MediPharm or self-dealing by Hwang, whose decisions were protected by the business judgment rule.

Hexo was ordered to pay the outstanding invoices.

The applicant municipality sought an interlocutory injunction to prevent the respondent municipality from making new connections to its water and sanitary sewer systems, pending the resolution of a dispute over an expired services agreement.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicant failed to establish irreparable harm and the balance of convenience favoured permitting three specific new development connections.

The injunction was granted on consent for all other new connections, with the three specific developments exempted.

The plaintiffs, minority shareholders, brought a motion for a mandatory interlocutory injunction seeking reinstatement to the board of directors and an order compelling the corporation to declare dividends.

The plaintiffs had previously sued the corporation and majority shareholders for $7.5 million for conspiracy, fraud, and oppression.

The court dismissed the request for mandatory injunctions, finding the plaintiffs did not establish a strong prima facie case for reinstatement due to their conflict of interest, nor for an immediate dividend distribution while the corporation's liability in the lawsuit remained undetermined.

However, the court granted a non-mandatory injunction preserving the status quo by prohibiting the corporation from expending funds outside the ordinary course of business.