Michael S. Hebert

The plaintiffs in a certified class action brought a motion to amend their statement of claim and certification order to add a claim for punitive damages based on evidence discovered during the discovery process.

The claim alleged that the defendant knew or ought to have known of possible PFAS contamination of class members' drinking water by March 2013 but failed to disclose the contamination until December 2015.

The court found the proposed amendment was not plain and obvious to fail, as the failure to warn neighbouring residents of possible PFAS contamination of their drinking water could be found to offend the court's sense of decency.

The motion to amend was granted, Carleton University was removed as a defendant on consent, and the defendant's cross-motion was denied.

The defendants brought a motion to strike the plaintiffs' claims for oppression.

The plaintiffs, former minority shareholders, alleged that the defendants misappropriated corporate assets and sold shares below true value.

The court struck the claims against the Murison Family Trust with leave to amend, as a trust is not a legal entity.

The claims against 2123388 Ontario Inc. and Exia Biomedical Inc. were struck without leave to amend, as 212 lacked the capacity to oppress and the claims against Exia belonged to the corporation and required a derivative action.

The claim against Obotics Inc. was struck with leave to amend, as no material facts of wrongful conduct were pleaded.

Following a judgment awarding the plaintiff damages for diminution in property value and engineering expenses due to environmental contamination, the parties disputed the calculation of prejudgment interest.

The plaintiff sought interest from the date the defendant was put on notice of the contamination at the presumptive rate of 1.3%, while the defendant argued for a later date and lower rate.

The court agreed with the plaintiff, finding no reason to depart from the presumptive rate or the date the cause of action arose, and awarded prejudgment interest accordingly.

Following a successful motion for class action certification regarding PFAS groundwater contamination, the plaintiffs sought costs against the unsuccessful defendant, the National Research Council of Canada (NRC).

A successful co-defendant, Carleton University, sought costs against the plaintiffs.

Applying the factors under Rule 57, the court ordered NRC to pay the plaintiffs $207,500 in costs on a partial indemnity scale.

The plaintiffs were ordered to pay Carleton University $20,000 plus HST in costs.

The plaintiff, former owner of a commercial property, sued the neighbouring property owner for environmental contamination caused by the migration of dry-cleaning solvents (PCE, TCE, DCE).

The defendant purchased the neighbouring property in 2007 and was put on notice of the contamination in 2010 but failed to take reasonable steps to investigate or remediate the issue, ignoring Ministry of the Environment requests until a Provincial Officer's Order was issued.

The court found the defendant liable in nuisance and negligence for allowing the continuing migration of contaminants after acquiring knowledge of the issue.

The plaintiff was awarded $1,291,307.21 in damages, representing the diminution in the property's market value and reasonable engineering expenses incurred to obtain a Record of Site Condition.

The plaintiffs brought a motion to certify a class proceeding against the National Research Council of Canada (NRC) and Carleton University, alleging that PFAS contaminants from NRC's National Fire Laboratory migrated into the groundwater of adjacent properties.

The court certified the class action against NRC for claims in strict liability, nuisance, negligence, and statutory breaches, finding that the pleadings disclosed causes of action and that a class proceeding was the preferable procedure.

The court dismissed the claim for punitive damages against NRC and refused to certify the common issues against Carleton University due to a lack of evidence connecting its activities to the contamination.

The plaintiff subcontractor sought payment from the owner's holdback funds after the general contractor failed to pay for work on a restaurant construction project.

The court determined that the contract between the owner and general contractor was not a fixed-price contract but rather a costs-plus arrangement, meaning the owner's 10% holdback obligation was calculated based on the total actual costs incurred.

The court also found the owner was not liable for a further notice holdback because it did not receive written notice of the liens in the prescribed form.

Finally, the court interpreted trust agreements between the owner and other subcontractors who had discharged their liens, awarding them payments from the trust funds based on the specific terms of their respective agreements.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' environmental contamination action on the basis that it was commenced after the expiry of the two-year limitation period.

The plaintiffs argued that the limitation period was tolled under s. 5(1)(a)(iv) of the Limitations Act because the ongoing involvement of the Ministry of the Environment constituted an alternative process, making a court proceeding inappropriate.

The court held that the Ministry's involvement did not toll the limitation period because it was not an alternative dispute resolution process with a reasonably ascertainable end date, and the plaintiffs' decision to delay litigation was tactical.

The motion for summary judgment was granted and the action was dismissed.

The plaintiff sought damages of approximately $4.8 million for breach of contract, negligent misrepresentation, and breach of the duty of good faith arising from a renewable energy contract.

The plaintiff acquired the secured debt of a company that had a contract with the defendant to build a biomass energy facility.

When the company filed for bankruptcy, the defendant treated the contract as automatically terminated pursuant to its terms, requiring the plaintiff to seek a new agreement.

The court dismissed the action, finding that the contract unambiguously provided for automatic termination upon bankruptcy, the defendant did not act in bad faith, and the plaintiff failed to mitigate its damages and prove an enforceable agreement for the sale of the contract.

Following a successful appeal that dismissed the plaintiffs' action against the moving defendants, the issue of costs for four summary judgment motions was returned to the motion judge.

The moving defendants sought substantial indemnity costs, arguing the plaintiffs alleged fraud and failed to accept a walk-away offer.

The court rejected these arguments, finding no fraud was pleaded and the communication was not a formal offer to settle.

Applying the principle of reasonableness and noting duplication of effort among multiple defence counsel, the court awarded partial indemnity costs fixed at a total of $235,000.

The plaintiff contractor brought a motion for summary judgment against the defendant restaurant for unpaid HST amounts totaling $83,261.60 relating to emergency repair and restoration services following a fire.

The defendant opposed the motion, claiming equitable set-off for $81,711.10 in expenses it incurred to complete work abandoned by the plaintiff's subcontractor.

The court dismissed the motion, finding a genuine issue requiring a trial regarding the defendant's entitlement to equitable set-off, as the claims were closely connected and it would be unjust to grant judgment without determining the counterclaim.

Following summary judgment motions brought by nine defendants, which were largely dismissed but resulted in the narrowing of the plaintiffs' claims, the court determined the issue of costs.

The plaintiffs sought $182,725 on a partial indemnity basis, while the defendants sought $289,249.

The court found that the plaintiffs were generally successful as the actions were not dismissed, but granted the defendants a 25% credit ($72,000) for their partial success in narrowing the issues.

The plaintiffs were awarded net costs of $100,000.

Following a trial where the plaintiff was awarded over $1.8 million in damages for environmental contamination against one defendant but was unsuccessful against another, the court determined the costs payable by the unsuccessful defendant.

The court rejected the plaintiff's request for substantial indemnity costs, finding the defendant's conduct was not egregious.

The court applied a partial indemnity scale, reducing the fees by 10% to account for the successful co-defendant's involvement, and by a further 15% to reflect divided success on the issues and limited financial success compared to the amount claimed.

Total costs of $214,890.44 were awarded to the plaintiff.

The plaintiff property owner sued the adjacent dry cleaning business and its principal for environmental contamination caused by the migration of dry cleaning solvents (PCE/TCE) onto his lands.

The court dismissed claims in trespass, strict liability, and negligence, but found the corporate defendant liable in private nuisance and under section 99 of the Environmental Protection Act.

The individual defendant was not found liable as he did not own or control the pollutant at the time of the spills and his subsequent inaction did not cause the plaintiff's damages.

The court awarded the plaintiff $1,632,500 for remediation costs and $201,726.71 for engineering expenses.

The plaintiff sued the defendants, adjacent property owners, for environmental contamination allegedly caused by a former dry-cleaning tenant on the defendants' lands.

The defendants moved for summary judgment to dismiss the claims of nuisance, negligence, and statutory liability under the Environmental Protection Act.

The court granted the motion, finding that the defendants had no knowledge of the contamination, did not authorize the nuisance, and owed no duty of care to monitor the tenant's activities.

The statutory claim failed because the defendants did not own or control the pollutant.

The plaintiff sued the defendants for environmental contamination of his properties caused by dry cleaning chemicals originating from the adjacent property owned by the corporate defendant.

The individual defendant, who owned another adjacent residential property, moved for summary judgment dismissing the claims against him in negligence, nuisance, trespass, and statutory liability.

The court dismissed the motion, finding that genuine issues for trial existed because determining the individual defendant's liability required a comprehensive understanding of complex and evolving expert opinions regarding the source and migration of the contaminants, which necessitated oral testimony and cross-examination at trial.

Following the dismissal of a motion for partial default judgment and partial summary judgment, the court considered the appropriate costs award.

The defendant Crown sought substantial indemnity costs including significant expert disbursements.

The court reviewed the general principles governing costs under Rule 57 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act.

It concluded that the moving party's evidence supporting an alleged equitable mortgage was deficient and unreasonable in the context of the summary judgment motion.

Substantial indemnity costs and expert disbursements were awarded to the Crown.

The defendants brought a motion for security for costs under Rule 56.01(e), arguing the plaintiff was an undischarged bankrupt bringing a frivolous claim.

The plaintiff, who had been an undischarged bankrupt for over 40 years, claimed he was owed compensation for acting as Chief Executive Officer of the defendants' business.

The court found that while the plaintiff had insufficient assets, the claim was not frivolous and vexatious as he had worked for years without a salary.

The motion for security for costs was dismissed, with no costs awarded due to the plaintiff's failure to provide full financial disclosure.

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.