Moya J. Graham

The plaintiffs successfully obtained an anti-suit injunction to halt an arbitration commenced by the defendants in Hong Kong, which was found to be an abusive collateral attack on prior Ontario rulings.

The plaintiffs sought costs on a substantial indemnity basis.

The court awarded the plaintiffs $261,900 in substantial indemnity costs, emphasizing the defendants' vexatious and oppressive tactics in pursuing the foreign arbitration and threatening the representative plaintiffs with personal financial jeopardy.

This decision addresses two motions: the plaintiff's motion for a stay of a proposed class action against Apple Canada Inc. pending an appeal in an unrelated case (Lewis v. Uber Canada Inc. et al.), and Apple's scheduling motion for summary judgment to be heard before certification.

The plaintiff's class action alleges Apple overcharged consumers on sales tax in its trade-in program, contrary to the Excise Tax Act and other statutes.

The court dismissed the plaintiff's stay motion, finding no certainty the Lewis appeal would resolve the jurisdictional issue, and that a stay is inappropriate merely because a similar legal issue is being decided in an unrelated case.

The court granted Apple's scheduling motion, affirming the strong presumption under s. 4.1 of the Class Proceedings Act, 1992, that merits-based motions should be heard before certification, especially when they could dispose of the entire case.

Costs were awarded to Apple.

The defendants brought a motion for a mandatory interim injunction to enforce indemnity agreements and require the plaintiffs to advance funding for their legal expenses.

The court found that the Cytrynbaum jurisprudence did not apply because the motion sought a mandatory injunction against an individual and a corporation, rather than a final determination under the CBCA.

The court dismissed the motion, holding that the defendants failed to establish a strong prima facie case due to concerns about conflicts of interest and lack of independent legal advice in the drafting of the indemnity agreements.

The court also found no irreparable harm, as any harm could be quantified in monetary terms.

The appellant appealed the dismissal of her medical malpractice action against an oculoplastic surgeon regarding cosmetic eyelid surgeries.

She alleged the trial judge erred in his findings on standard of care, informed consent, and the qualification of the respondent's expert witness.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or his preference for the respondent's expert evidence.

The court also dismissed the appellant's motion to adduce fresh evidence, as it did not meet the Palmer test.

The self-represented plaintiff brought a medical malpractice action arising from cosmetic eyelid surgeries, alleging negligent surgical technique, lack of informed consent, disfigurement, and later eye complications.

The court preferred the defence oculoplastic expert over the plaintiff's plastic surgery expert, finding the initial and subsequent surgeries were competently performed and that the moving party had consented to them after adequate disclosure of risks, benefits, and medically reasonable alternatives.

Although the defendant's limitation defence failed because ongoing good-faith remedial efforts made earlier litigation inappropriate, the plaintiff failed on standard of care, informed consent, and causation.

The action was dismissed, with the court also assessing hypothetical damages in the event liability had been established.

Following a pleadings motion in which the defendant successfully obtained an order striking certain paragraphs of the plaintiff’s statement of claim, the court determined the appropriate costs award.

The defendant sought substantial indemnity costs exceeding $26,000, while the plaintiff argued the request was excessive and proposed partial indemnity costs between $4,500 and $5,500.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality and the objective of fixing fair and reasonable costs for the unsuccessful party to pay.

The court concluded the defendant was largely successful but that the claimed amount was excessive given the nature of the motion and the materials filed.

Partial indemnity costs were therefore reduced and fixed at $8,500 inclusive of HST and disbursements.

The defendant brought a motion under Rule 25.11 of the Rules of Civil Procedure seeking to strike numerous paragraphs from the plaintiff’s statement of claim on the basis that they were irrelevant, scandalous, frivolous, vexatious, or otherwise non‑compliant with pleading rules.

The action concerned an employment dispute in which the plaintiff alleged breach of an employment agreement and entitlement to compensation under a long‑term incentive plan.

The court held that many paragraphs contained extensive background allegations about corporate structure, family relationships, and alleged misconduct that were largely irrelevant to the contractual dispute and would unnecessarily complicate the litigation.

Applying established principles governing pleadings, the court struck the majority of the impugned paragraphs but allowed certain limited background and compensation‑related paragraphs to remain.

The plaintiff was ordered to file and serve a fresh amended statement of claim consistent with the decision.

A former employee of a digital cinema company misappropriated proprietary 2D to 3D conversion software and confidential information while still employed and used it to establish competing businesses in China.

The court found breaches of the duty of good faith and fidelity, misuse of confidential information and trade secrets, misappropriation of a corporate opportunity, and the tort of conversion.

The defendants, most of whom were noted in default, used the stolen technology to win a theatre project and compete in the digital cinema market.

The court awarded damages reflecting the minimum cost of developing the stolen technology, disgorgement of profits from the misappropriated project, punitive damages, and substantial costs.

The appellants appealed a judgment of the Superior Court of Justice.

The Court of Appeal ordered the continuation of the appeal of the minor appellant and subsequently dismissed the appeal without costs on the consent of all parties.

The applicant filed a human rights application alleging discrimination on the basis of disability after his doctor terminated the doctor-patient relationship.

The application was filed almost two years after the last incident.

The Tribunal held a summary hearing to determine if the application should be dismissed for delay.

Finding that the applicant failed to establish a good faith explanation for the delay, the Tribunal dismissed the application as out of time.

In a wrongful dismissal action, the defendant employer brought a motion to amend its statement of defence to add a counterclaim alleging that the plaintiff employee had improperly claimed reimbursement for personal expenses and charged personal expenses to the employer’s credit card.

The plaintiff opposed the amendment, arguing the proposed counterclaim was statute-barred under the Limitations Act, 2002 because the underlying documents had been in the employer’s possession for many years.

The court held that the discoverability issue could not be conclusively determined on the limited evidentiary record before it and that it was not clear a reasonably prudent employer ought to have discovered the alleged misconduct earlier.

The court therefore granted leave to amend the pleading, leaving the limitation defence to be determined at trial.

Following an appeal from summary judgment decisions in two related actions involving fraudulent investment schemes, the Court of Appeal determined the costs of the motions and the appeals.

The court upheld the costs and Sanderson order in favour of the successful Mauldin group.

However, because the appellant successfully appealed the summary judgment in the Bruno action, the court set aside the costs and Sanderson order in favour of Bruno, reserving the motion costs to the trial judge and making Bruno liable for the co-defendants' costs.

Costs of the appeals were awarded on a partial indemnity scale.

The plaintiff brought a motion seeking findings of contempt against a former employee and his company for failure to comply with prior court orders requiring cessation of competitive activities, return of confidential information, and attendance for mediation and examination.

The evidence showed the individual repeatedly ignored court orders, failed to attend examinations, continued competing using confidential information, and attempted to evade the court’s jurisdiction by travelling abroad.

The court found beyond a reasonable doubt that the defendants were in contempt and that the conduct was deliberate, ongoing, and aggravated by attempts to destroy evidence.

The court imposed significant sanctions including a $50,000 fine, struck the individual’s statement of defence, ordered attendance for discovery, and authorized issuance of a warrant of committal for incarceration if compliance was not achieved.

Following earlier motions seeking to set aside or vary an ex parte order and discharge certificates of pending litigation registered against properties connected to bankrupt estates, the trustee sought costs.

The moving parties argued they had achieved partial success and that costs should be in the cause or borne by each party.

The court found the trustee had been essentially successful in maintaining the certificates of pending litigation and defending the scope of the production order, notwithstanding limited clarification provided in the earlier endorsement.

After considering objections regarding time spent on cross-examinations and the factors in rule 57.01(1), the court fixed partial indemnity costs in favour of the trustee.

The spouses of two bankrupt individuals and related family trusts moved to set aside or vary an ex parte order obtained by the bankruptcy trustee that authorized production of financial records and permitted the registration of certificates of pending litigation against matrimonial homes held in the spouses’ names.

The applicants argued that the trustee improperly proceeded without notice, failed to provide full and fair disclosure, and did not follow statutory investigative steps under the Bankruptcy and Insolvency Act before seeking court relief.

The court held that the trustee had reasonable grounds to proceed ex parte due to concerns that the bankrupts might encumber the properties and that there had been no material non‑disclosure.

However, the court found that the authorization of certificates of pending litigation was procedurally irregular because no proceeding claiming an interest in land had yet been commenced.

The order was varied so that the certificates would be discharged unless the trustee commenced a proceeding asserting an interest in the properties within a specified period.

The applicants, two physicians, sought judicial review of a decision by the Health Professions Appeal and Review Board to proceed with a review of a Complaints Committee decision regarding their conduct, despite the complainants having withdrawn their requests for review against the applicants.

The Board argued it retained jurisdiction to review all parties named in a multiple-member decision until the matter was completely withdrawn.

The Divisional Court held that the Board's interpretation of its jurisdiction under the Health Professions Procedural Code was unreasonable, as the statute does not confer discretionary jurisdiction to review a decision where no request is maintained.

The application was allowed and the Board's decision to proceed with the review was quashed.

These consolidated appeals addressed the interpretation and application of the amended summary judgment regime under Rule 20 of the Rules of Civil Procedure.

The Court of Appeal held that summary judgment may be granted not only where claims or defences are without merit or the parties agree, but also where the motion judge can achieve a full appreciation of the evidence and issues required to make dispositive findings on the motion record, possibly supplemented by limited oral evidence.

The court articulated the “full appreciation” test, confirmed that the standard of review on whether there is a genuine issue requiring a trial is correctness, and explained the proper use of the new powers to weigh evidence, evaluate credibility, draw inferences, and hear oral evidence on discrete issues.

Applying those principles, the court dismissed the Combined Air, Misek, and Parker appeals, dismissed the Mauldin appeal, and allowed the Bruno appeal by setting aside summary judgment and dismissing the motion.