Michael Arbutina

Following the dismissal of the plaintiffs' appeal from the dismissal of their certification motions in two proposed class actions, the parties consensually resolved the issue of costs.

The Divisional Court ordered costs payable by the plaintiffs/appellants to the various defendants/respondents in the total amount of $92,500, inclusive of fees, disbursements, and HST.

The plaintiffs appealed the dismissal of their certification motions in two proposed class actions arising from a privacy breach at two hospitals.

Rogue hospital employees accessed the contact information of maternity patients and sold it to RESP salespeople.

The Divisional Court upheld the motions judge's finding that the accessed information (names, addresses, phone numbers, and basic hospital visit details) was personal but not highly private, and that the intrusion would not be regarded by a reasonable person as highly offensive causing distress, humiliation, or anguish.

Although the motions judge erred in his class definition, the appeal was dismissed because the elements of the tort of intrusion upon seclusion were not met.

The appellants appealed a trial judgment finding them liable for damages due to abandoning a 10-year commercial lease.

The appeal focused on two grounds: whether Kevin O’Neill was personally liable as a tenant and whether outdoor storage was a permitted use of the premises, justifying abandonment.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the lease was unambiguous regarding Kevin O'Neill's personal liability and that the appellants failed to demonstrate an implied term for outdoor storage or a mutual mistake regarding permitted uses.

Following the dismissal of two proposed class action certification motions and a Rule 21 motion regarding the unauthorized sale of hospital patient contact information to RESP sales representatives, the successful defendants sought costs totaling over $690,000.

The Law Foundation of Ontario, which had indemnified the plaintiffs, argued that no costs should be awarded due to the novelty of the legal issues and the significant public interest in the protection of health privacy.

The court agreed, finding that the case raised novel questions about commercial liability for purloined patient information and engaged important public policy issues.

Applying section 31 of the Class Proceedings Act, 1992, the court exercised its discretion to make no order as to costs.

Two proposed privacy class actions arising from hospital employees’ unauthorized extraction of patient contact information for RESP sales leads were refused certification.

The court held that, on the actual evidentiary record, the disclosure of contact information alone, without disclosure of medical records or other objectively private information, could not support the tort of intrusion on seclusion because there was intrusion but no legally sufficient seclusion and no objectively highly offensive invasion.

Although certain claims, including a PHIPA s. 65 claim and some negligence theories against the hospitals and rogue employees, were arguable at the pleadings stage, there were no viable common issues and a class proceeding was not the preferable procedure.

Small Claims Court proceedings or PHIPA-related processes were found more proportionate for any remaining individualized claims.

The respondent claimed it was owed $245,000 by the appellants.

The parties signed Minutes of Settlement and a Consent to Judgment in July 2008 with legal advice, but subsequently signed another document in September 2008 without legal advice.

The appellants argued the later document superseded the earlier ones, while the respondent disagreed.

The Court of Appeal held that the serious factual issues between the parties could not be resolved on a paper record and required a trial.

The appeal was allowed and the judgment below was set aside.

Following a successful trial resulting in damages of $400,000 for the applicants, the court determined the appropriate costs award.

The applicants sought substantial indemnity costs exceeding $213,000 based on early settlement offers.

The respondents accepted that costs were payable but argued for a lower partial indemnity award.

The court held that the settlement offers did not justify substantial indemnity costs and that partial indemnity costs were appropriate after considering Rule 50.10 factors including trial length, complexity, and importance of the issues.

Costs were fixed at $150,000 inclusive of disbursements and taxes.

The appellant condominium owner sought access to election proxies and ballots after an unsuccessful bid for the board of directors.

The Small Claims Court initially ordered production of the records, but later varied the order to require redaction of identifying information to protect owner privacy.

The appellant appealed the variation order to the Divisional Court.

The Divisional Court dismissed the appeal, finding it lacked jurisdiction because the appealed order was procedural and did not involve a monetary amount, and further held that the Small Claims Court judge had jurisdiction to clarify the order.

A proposed purchaser under a second agreement of purchase and sale sought leave to intervene in litigation between the original purchaser and the vendor concerning the enforceability of an earlier agreement for the sale of condominium units.

The proposed intervenor also sought a mandatory order compelling completion of the second agreement, declaratory relief, and security for costs.

The court held the proposed intervenor would not assist in resolving the dispute between the original contracting parties and would merely duplicate the vendor’s position.

Any damages arising from failure to complete the second agreement would be compensable and properly pursued against the vendor in a separate proceeding.

The court dismissed the motion for intervenor status and related relief, refused the vendor’s request to withdraw its undertaking not to transfer title, and directed that the dispute proceed by expedited trial on the Commercial List.

The appellant appealed a trial judgment, arguing the trial judge erred in refusing an adjournment due to late disclosure, making blanket credibility findings, allowing an amendment to the interest rate claimed, finding an agreement on an 18 per cent interest rate, and awarding excessive costs.

The Court of Appeal dismissed all grounds of appeal, finding no prejudice from the late disclosure, sufficient support for credibility findings, that the interest rate amendment was not a new claim, and sufficient basis for the interest rate agreement.

The application to file fresh evidence was also dismissed, and costs of the appeal were awarded to the respondent.

The appellant appealed a judgment regarding the interpretation of a Quit Claim deed.

The Court of Appeal upheld the application judge's finding that the Quit Claim deed was clear, unambiguous, and determinative, rejecting the argument that its meaning required reference to other documents.

The appeal was dismissed, and leave to appeal the substantial costs order was denied.

The City of Vaughan appealed a decision dismissing its motion for summary judgment, arguing that s. 20(1)(a) of the Oak Ridges Moraine Conservation Act provided complete immunity against the plaintiffs' $151 million claim for malfeasance and negligence.

The plaintiffs alleged the City deliberately delayed their zoning applications, causing them to lose the opportunity to develop their land before retroactive legislative amendments made the development impossible.

The Divisional Court dismissed the appeal, finding that the plaintiffs' cause of action and some damages accrued prior to the legislative amendments, meaning statutory immunity did not completely bar the claim.

The court also reduced the motion judge's substantial indemnity costs award from $169,156.30 to $119,156.30.