Mitchell R. Smith

The plaintiff, FirstService Residential Ontario, brought a motion for an order directing the parties to comply with a proposed discovery plan.

The motion primarily concerned disputed provisions regarding the discovery of documents from the defendants, who were former employees and a competitor accused of breach of fiduciary duty, breach of contract, breach of confidence, conspiracy, and unlawful solicitation of clients and employees.

The court ruled on the relevance of various categories of documents, including employment agreements, communications related to client and employee solicitation, and financial statements, and imposed the discovery plan with specific inclusions and exclusions.

This case conference addressed the scheduling of the plaintiff's summary judgment motion in a wrongful dismissal action.

The defendant preferred to proceed with discoveries and trial, arguing the motion was premature and might involve credibility issues.

The court, however, decided to schedule the two-hour summary judgment motion, noting that wrongful dismissal cases often have contained issues and that a motions judge retains discretion to order a trial or mini-trial if credibility issues require further exploration.

The Ontario Nurses' Association (ONA) sought an urgent interlocutory injunction against four long-term care (LTC) facilities experiencing COVID-19 outbreaks, alleging breaches of Chief Medical Officer of Health (CMOH) Directives regarding personal protective equipment (PPE) and infection control.

The ONA contended that the facilities failed to provide necessary PPE, particularly N95 masks, and implement appropriate administrative controls like isolating and cohorting residents and staff.

The facilities argued they complied with directives and that the ONA sought control over scarce resources.

The court found that the matter, though a labour dispute, required the court's inherent jurisdiction due to the inability to expedite arbitral processes.

Applying the RJR-MacDonald test, the court found a serious question to be tried and irreparable harm to nurses and residents.

The balance of convenience favored granting the injunction, prioritizing health and safety.

The court ordered the LTC facilities to provide nurses with access to N95 respirators and other appropriate PPE based on point-of-care assessment and to implement administrative controls as per CMOH Directives.

The Crown and the Municipal Property Assessment Corporation (MPAC) brought motions to transfer four related Small Claims Court actions to the Superior Court of Justice.

The self-represented plaintiffs, former employees affected by a 1998 pension divestment, opposed the transfer.

The court applied the factors from Farlow v. Hospital for Sick Children, balancing the complexity of issues, need for expert evidence, and discovery against access to justice concerns.

The court concluded that the moving parties failed to demonstrate that the claims could not be fairly and justly resolved in the Small Claims Court, and dismissed the motions.

The plaintiff, Richelle Milloy, was the successful party in a 10-day trial and sought partial indemnity costs of $79,517.59.

The defendant, Complex Services Inc., argued that the plaintiff recovered less than one-third of the claimed damages and that costs should be proportionate to the award, proposing $20,000 plus disbursements and HST (approx. $26,134).

The court, applying Rule 57 of the Rules of Civil Procedure and principles from Boucher and Zesta Engineering, noted the plaintiff's bill lacked detail, the case was of average complexity, and the litigation, initially ordinary procedure, continued under simplified procedure with a recovery of $32,137.18.

The court also discounted costs for a plaintiff's motion at trial and found the 210 hours spent on litigation excessive given the recovery.

Ultimately, the court fixed costs payable by the defendant to the plaintiff at $30,000 inclusive of fees, disbursements, and HST.

The plaintiff, a former table games dealer, sued for wrongful dismissal after her employment was terminated due to a permanent shoulder injury.

The defendant employer argued frustration of contract, having provided modified duties for over two years.

The court found that the employer's failure to offer alternative suitable positions within the organization, despite the employee's qualifications and exemplary record, constituted 'self-induced frustration' and prevented the employer from relying on the doctrine of frustration of contract.

The court ruled in favour of the plaintiff, awarding damages for wrongful dismissal based on common-law reasonable notice.

The defendants brought a motion for security for costs under r. 56.01(1)(d) and (e) of the Rules of Civil Procedure, alleging the corporate plaintiffs lacked sufficient assets in Ontario and that the action was frivolous and vexatious.

During the lengthy motion, additional affidavit evidence from the plaintiffs’ accountant later demonstrated that the plaintiffs’ financial circumstances had improved, leading the defendants to withdraw the security for costs motion.

The remaining issue concerned costs of the motion.

The court held the defendants were justified in bringing the motion based on the initial lack of financial disclosure and the plaintiffs’ poor financial condition at the outset.

Costs of $15,000 were awarded to the defendants, partly because the court had granted the plaintiffs an indulgence by admitting late affidavit evidence.

Following the dismissal of a plaintiff’s motion for an interlocutory injunction, the court addressed costs.

The successful defendants sought partial indemnity costs up to the date of a settlement offer and substantial indemnity costs thereafter, while the plaintiff argued that costs should be in the cause because the underlying action remained unresolved.

The court held that settlement discussions related to the action as a whole and did not justify substantial indemnity costs for the motion.

Because the motion was self‑contained and dismissed in its entirety, the defendants were entitled to costs on a partial indemnity basis.

The court reduced the defendants’ claimed fees to an amount comparable to the plaintiff’s own costs estimate and awarded a global costs figure.

The plaintiff employer sought an interlocutory injunction against former employees and their new company alleging misappropriation of confidential information, breach of fiduciary duty, and breach of non‑solicitation clauses in employment agreements.

The court considered the test for interlocutory injunctions under RJR‑MacDonald and whether stronger proof was required in employment and restrictive covenant contexts.

The motion failed because the alleged confidential information consisted largely of generic consulting practices and there was no credible evidence that proprietary information had been taken or misused.

The alleged client and employee solicitations were disputed, unclear under the wording of the agreements, and occurred more than a year earlier, with no evidence of ongoing harm.

As the plaintiff failed to demonstrate irreparable harm or a clear breach of enforceable covenants, injunctive relief was denied.