Michael Beeforth

The appellant railway company appealed a partial summary judgment dismissing its claims for ongoing coal tar contamination as an abuse of process.

The appellant had previously commenced an action in 1989 for historical and continuing coal tar migration, which was dismissed for inordinate delay and failure to preserve evidence.

The appellant commenced a new action in 2014 claiming damages for continuing migration since 2012.

The Court of Appeal dismissed the appeal, holding that the continuing tort claims were exhausted by the dismissal of the 1989 action, and allowing the 2014 action to proceed would undermine finality and bring the administration of justice into disrepute.

The court granted summary judgment dismissing Canadian National Railway Company's claims relating to coal tar contamination as an abuse of process, since those claims had already been dismissed in 2014 due to inordinate delay and failure to preserve evidence.

The court found that the same fairness concerns that prevented a fair trial in 2014 persisted.

However, the court allowed CN's claims regarding benzene contamination to proceed, finding that these claims did not crystallize until 2014 and were not part of the earlier action.

The decision clarifies the application of res judicata and abuse of process in the context of environmental contamination and continuing torts.

Following the dismissal of the plaintiff's action by summary judgment, the successful defendants sought costs on a substantial or full indemnity basis.

The plaintiff had alleged that the defendants conspired to conceal noise from idling trains and made fraudulent misrepresentations regarding a commercial sublease.

The court held that the plaintiff's unproven allegations of fraud and dishonesty justified an award of substantial indemnity costs.

Applying the overriding principle of reasonableness, the court awarded costs of $66,521.61 to the defendant real estate broker and $198,000 to the defendant accounting firm.

The plaintiff sublessee brought an action against the defendant sublessor and its real estate broker, alleging they fraudulently concealed a latent defect regarding excessive noise from idling trains at the adjacent Union Station.

The defendants brought motions for summary judgment to dismiss the action.

The court granted the motions, finding that the train noise was a patent defect, not a latent one, and there was no evidence of a conspiracy to conceal it.

Furthermore, the plaintiff had acknowledged the proximity to the train station and agreed to an exculpatory clause in the lease that shielded the defendants from liability for train noise.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's negligence claim as statute-barred under the Limitations Act, 2002.

The plaintiff alleged the municipality negligently issued a building permit in 1981 without conservation authority approval, leading to foundation failure in 2017.

The court found the claim was discovered objectively by 2013 when the plaintiff obtained an engineering report identifying unsuitable fill, and that the 15-year ultimate limitation period had also expired.

The court rejected arguments that the limitation period was tolled by a municipal claims process or by fraudulent concealment, granting summary judgment and dismissing the action.

The defendant brought a motion to strike a paragraph in the plaintiff's reply that referenced a Transportation Safety Board (TSB) investigation into a train derailment.

In response, the plaintiff brought a cross-motion to amend the paragraph.

The court granted the motion to strike and dismissed the motion to amend, finding that the proposed amendment did not meet the requirements for a reply, pleaded evidence rather than material facts, and was scandalous and prejudicial as it improperly implied wrongdoing based on the mere existence of a TSB investigation.

This motion sought a stay pending leave to appeal an order authorizing the sale of a 51% interest in Downsview Homes Inc. (DHI) within ongoing CCAA proceedings.

The moving party, the Foreign Representative of Urbancorp Inc., argued the sale process should be postponed until a related arbitration regarding a disputed payment was resolved, fearing a chilling effect on potential bids.

The supervising judge had previously dismissed these concerns as speculative.

The Court of Appeal applied the three-part RJR-MacDonald test for a stay, finding the grounds for appeal weak, no irreparable harm to the moving party, and the balance of convenience favoring the respondents (the Monitor and Mattamy Homes Limited, the debtor-in-possession lender).

Consequently, the motion for a stay was dismissed.

The plaintiffs brought a motion to strike the defendants' statement of defence due to their consistent failure to abide by multiple court orders over three years.

The action was commenced to enforce unpaid costs orders from a failed arbitration and judicial review.

Despite being under case management and subject to multiple peremptory orders, the defendants failed to complete examinations for discovery, answer undertakings, or attend mediation.

The court found the defendants' breaches demonstrated an utter disregard for the court's orders and concluded that no other appropriate and practical remedy short of dismissal would ensure compliance.

The motion to strike the statement of defence was granted.

The plaintiffs brought motions to compel the examination of a defendant on behalf of a corporate defendant and for further and better affidavits of documents from several defendants.

The parties agreed to dismiss the examination motion and portions of the production motion without prejudice.

The court ordered one defendant to produce certain financial documents relevant to personal enrichment and an itemized Schedule B list, but dismissed the remaining requests for further documents and better email descriptors, finding insufficient evidence of missing documents and that the current descriptors were proportionate.

Karen Deer initiated an action against RBC Dominion Securities Inc. and others, alleging unauthorized margin account activity.

She issued a Notice of Action but failed to file a Statement of Claim within the prescribed 30 days, leading to the presumptive expiry of a limitation period under the Securities Act.

Deer moved to extend the time for filing her Statement of Claim and validate its service.

RBC opposed, arguing non-compensable prejudice due to the loss of a limitations defence.

The court granted Deer's motion, finding a reasonable explanation for the delay and no actual prejudice to RBC, emphasizing the policy of adjudicating cases on their merits over strict adherence to procedural rules when no substantive prejudice exists.

The plaintiffs, shareholders in Domenic Cosentino and Co. Limited (DCCL), brought a motion seeking an injunction to halt the sale of the company's sole asset, the Wolfedale Road property, an interim preservation order, or a Certificate of Pending Litigation (CPL), alleging oppressive conduct by the controlling shareholders, Mary and Tony Cosentino.

The plaintiffs claimed Mary and Tony had mismanaged company finances, depleted property equity through undisclosed mortgages, and acted without transparency regarding the property sale and their personal financial benefits.

The court found that Mary and Tony's actions were oppressive, establishing a serious issue to be tried and irreparable harm if the sale proceeded without safeguards.

However, the court denied the injunction, preservation order, and CPL, finding that the balance of convenience favored allowing the sale to proceed due to the company's dire financial state and mortgage default.

Instead, the court ordered that the net proceeds of the sale be paid into court, and Tony's disputed commission be held pending trial.

The plaintiff moved to set aside a registrar's administrative dismissal of its action for delay.

The action, which sought a declaration regarding mining royalty obligations, was dismissed after the plaintiff's tickler system failed to alert counsel to the five-year deadline while awaiting mediation dates from the defendant.

Applying the Reid test, the Master found the delay was adequately explained, inadvertent, and promptly addressed once discovered.

The Master also found no actual prejudice to the defendant, noting the defendant's own delays and failure to provide mediation dates.

The motion was granted, the dismissal set aside, and costs awarded to the plaintiff.

Following the dismissal of the plaintiffs' motion for document production in a proposed class proceeding regarding a data breach, the defendants sought partial indemnity costs of $9,281.82.

The plaintiffs argued for no costs due to divided success, or alternatively $2,500 or $5,000.

The court agreed with the plaintiffs' final alternative submission and awarded the defendants costs fixed at $5,000 all-inclusive.

In a proposed class action arising from data breaches, the plaintiffs brought a motion seeking production of Yahoo's database of 16.9 million Canadian users to cross-examine the defendants' expert on the certification motion.

The court dismissed the motion, finding that the plaintiffs failed to meet the onus of explaining how access to the database was relevant to the certification motion and that the request was disproportionate.

The applicant sought to set aside an arbitral award, arguing that the arbitrator's failure to conduct a conflict search with his former law firm, which had acted for the underwriters of the project and a company whose CFO was a witness, created a reasonable apprehension of bias.

The court found it had jurisdiction to hear the challenge under Article 34 of the Model Law.

However, the court dismissed the application, holding that the connection between the arbitrator and his former firm's clients was too remote to establish a reasonable apprehension of bias, and that an arbitrator who has left a law firm does not have a duty to investigate potential conflicts with that former firm.