Michael Samuel Hebert

The defendant bank sought leave to appeal to the Divisional Court from an order certifying a class proceeding arising from unauthorized access to customer information by a bank employee.

The proposed appeal challenged the class definition, the certification of a waiver of tort claim, and the certification of claims for non‑pecuniary damages in negligence and contract without proof of psychiatric injury.

The court held that the certification judge had applied the correct low threshold applicable at the pleadings and certification stage and that the bank had not shown conflicting authority or good reason to doubt the correctness of the order under Rule 62.02(4) of the Rules of Civil Procedure.

The court further held that the class definition was not impermissibly over‑inclusive and that the waiver of tort issue met the “some basis in fact” standard for certification.

Leave to appeal was therefore refused.

Following the dismissal of a corporate plaintiff’s claim on summary judgment arising from a failed commercial real estate transaction, the court determined the appropriate allocation and quantum of costs among multiple parties.

The defendants sought elevated costs relying on offers to settle and alleged litigation tactics by the plaintiff.

The court awarded enhanced costs to the defendants and held that the controlling individual behind the corporate plaintiff could be personally liable for costs by piercing the corporate veil.

The court also interpreted an indemnity clause signed by a corporate officer as creating joint personal liability for full indemnity costs to one defendant.

Various additional costs claims by other parties were dismissed.

The respondent lessor sued the appellant lessee for damages arising from an oil spill from an above-ground storage tank.

The appellant brought a motion under Rule 21.01(1)(a) to determine whether the commercial lease contained a covenant by the respondent to insure against the loss, which would bar the action.

The motion judge found no such covenant and allowed the action to proceed.

On appeal, the Court of Appeal held that the jurisprudence was unsettled and it was not plain and obvious whether the lease contained such a covenant.

The court set aside the motion judge's determination on the covenant issue, leaving it for trial, but upheld the dismissal of the appellant's motion to dismiss the action.

The Canada Revenue Agency (CRA) registered liens against a taxpayer's properties for unpaid taxes.

The taxpayer's wife and sister subsequently claimed prior unregistered equitable interests in the properties (constructive trust and equitable mortgages).

The CRA brought a motion to determine if its registered liens took priority over these unregistered equitable interests.

The motion judge held that the CRA's liens did not constitute a 'charge' under the Land Titles Act and therefore did not take priority.

The Court of Appeal dismissed the CRA's appeal, confirming that the statutory liens do not arise from a voluntary act of the landowner and thus do not gain the priority afforded to a registered charge under the Land Titles Act.

At a status hearing under Rule 48.14 of the Rules of Civil Procedure, the plaintiff was required to show cause why the action should not be dismissed for delay.

The defendants argued that the plaintiffs failed to advance the litigation diligently and that the action was a nullity due to the corporate plaintiff’s bankruptcy.

The court applied the two‑part test requiring an acceptable explanation for the delay and the absence of non‑compensable prejudice to the defendants.

Although the delay was significant, the court accepted the plaintiffs’ explanation relating to related litigation, financial constraints, and a change of counsel, and found insufficient prejudice to the defendants.

The action was permitted to proceed subject to a strict timetable, and the defendants were awarded partial indemnity costs of the status hearing.

The appellant appealed an order setting aside a previous consent judgment that had dismissed the respondent's action for lack of jurisdiction.

The motions judge had set aside the consent order based on a subsequent change in jurisprudence regarding the court's jurisdiction.

The Divisional Court allowed the appeal, holding that a change in the law does not constitute 'facts arising or discovered after' an order is made under Rule 59.06(2)(a).

The court also found that the respondent's application to re-open the action was barred by cause of action estoppel.

The defendant commercial tenant brought a Rule 21 motion to determine a question of law, arguing that the commercial lease agreement allocated the risk of loss from an oil spill to the plaintiff landlord, thereby barring claims in negligence and contract.

The court reviewed the lease provisions and the Supreme Court of Canada trilogy on the allocation of risk in commercial leases.

The court found no clear language in the lease absolving the tenant of liability for its own negligence, nor any evidence the tenant paid increased insurance premiums.

The motion was dismissed, with the court also declining to dismiss the motion solely on the basis of the defendant's delay in bringing it.

At a contested status hearing for two related actions, the defendants sought an order dismissing the plaintiffs' actions for delay.

The actions, commenced in 2003 and 2004, involved complex corporate restructuring and real estate disputes.

The defendants argued prejudice due to the delay and the deaths of a plaintiff and a key witness.

The court found that the plaintiffs had not intended to abandon the actions and provided a reasonable explanation for the delay, which included numerous interlocutory proceedings.

The court concluded that dismissing the actions would be a draconian step and instead ordered the actions to continue subject to a strict timetable and a guillotine order.

The respondents brought a motion under Rule 59.06(2)(d) of the Rules of Civil Procedure to vary a previous judgment to include a declaration that the applicant had abandoned a portion of a right-of-way on the respondents' property.

The applicant opposed the motion, arguing the relief was not pleaded at trial.

The court found that the issue of the applicant's use of the right-of-way was fully canvassed at trial and that it was in the interest of justice to provide finality.

The court varied the judgment to declare the right-of-way abandoned, but granted the applicant an easement over a narrow strip to allow for inspection of her garage.

The moving defendants sought partial summary judgment dismissing the action against a corporate affiliate and a corporate officer in a construction dispute relating to a condominium development project.

The plaintiff alleged that the officer induced breach of contract, made misrepresentations, conspired with lenders, and that the corporate affiliate was effectively the alter ego of the contractor.

The court reviewed the amended Rule 20 summary judgment framework and the Court of Appeal’s guidance in Combined Air Mechanical Services Inc. v. Flesch, particularly the limits on a master’s authority and the requirement to determine whether a full appreciation of the evidence is possible without a trial.

Although the evidentiary record against the moving defendants was weak and the legal theories faced significant obstacles, the court held that the complex factual matrix and unresolved issues relating to the main breach of contract claim prevented a proper assessment on the record.

Summary judgment was therefore refused.

The defendants brought a motion to dismiss the plaintiffs’ action for failure to comply with undertakings given during cross‑examination in a long‑running commercial dispute.

Several undertakings relating to financial records, loan documentation, tax returns, and trust information remained outstanding despite prior court orders requiring compliance.

The court found that the plaintiffs had failed to diligently comply and that the attempted responses amounted largely to non‑answers.

While dismissal of the action under Rule 60.12 of the Rules of Civil Procedure was considered, the court held that dismissal would be disproportionate at that stage.

Instead, the plaintiffs were precluded from advancing evidence at trial relating to damages allegedly sustained by two corporations or claims based on those corporate losses.

The court determined whether agreed costs arising from a successful Rule 21 determination of a question of law should be payable immediately or in the cause pending appeal.

The underlying motion, brought by the tax authority under Rule 21.01(1)(a) of the Rules of Civil Procedure, sought determination of a legal issue prior to trial.

The court held that the Rule 21 proceeding constituted a discrete proceeding capable of disposing of the action and therefore warranted immediate costs consequences.

The successful parties were awarded agreed partial indemnity costs payable forthwith rather than in the cause.

The existence of a pending appeal did not justify delaying payment of the costs.

The appellant appealed an order made under Rule 59.06 that reopened proceedings previously terminated by a consent dismissal.

The respondent argued the appeal should have been brought to the Divisional Court with leave, as the order was interlocutory.

The Court of Appeal agreed, holding that an order reopening a matter under Rule 59.06 is interlocutory because it does not finally determine the rights of the parties.

The appeal was dismissed without prejudice to the appellant seeking leave from the Divisional Court.

The appellants appealed a trial judgment holding them liable in negligence and nuisance for water damage to the respondent's basement.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge made three fatal legal errors: improperly shifting the burden of proof by finding a 'presumption of negligence', imposing a non-existent duty on the appellants to assert a claim against the city on behalf of the respondent, and applying a material contribution test for causation instead of the standard 'but for' test.

The appellant's gas station leaked gasoline, contaminating the respondent's adjacent commercial property.

The trial judge awarded damages for remediation to a pristine state, stigma damages, a barrier, and prejudgment interest.

On appeal, the Court of Appeal upheld the award for remediation to a pristine state but struck the $350,000 award for stigma damages, finding no evidence of residual value loss once a property is restored to a pristine condition.

The court also replaced a mandatory injunction with a monetary award for a barrier and set aside the prejudgment interest to avoid double recovery, as damages were assessed at the date of trial.