Murray Stieber

The plaintiffs sought to certify five related class actions against Fortress Real Capital Inc., its principals, and two real estate appraisers regarding losses suffered from investing in syndicated mortgage loans.

The court certified the actions against Fortress and its principals, finding the pleadings disclosed viable causes of action in fraud and negligent misrepresentation, and that the other certification criteria were met.

However, the court dismissed the certification motions against the appraisers, concluding it was plain and obvious the claims would fail because the appraisers owed no duty of care to the investors and their reports expressly disclaimed third-party reliance.

The court also held the Harmony Village action in abeyance to allow the plaintiffs to substitute a suitable representative plaintiff.

A corporate purchaser of titanium and ferro metals sued a corporate officer personally for fraudulent misrepresentation after paying for multiple shipments that were never delivered.

The court found that by sending bills of lading, booking notices, packing lists, and related documents, the defendant represented that product had departed the factory or was ready for immediate shipment upon payment, and that those representations were false for the relevant shipments.

The court held that the defendant acted recklessly, not merely carelessly, because he was copied on extensive communications showing chronic shipping failures and nevertheless continued demanding payment while closing his eyes to obvious problems.

Reliance was established only for the later shipments after the purchaser's understanding of the shipping documents was clarified.

Liability was found, but damages, interest, and costs were left for further submissions.

Following a merits decision finding that the respondent mutual fund sales representative acted unfairly, dishonestly, and in bad faith towards a vulnerable client by failing to manage conflicts of interest, the Capital Markets Tribunal held a sanctions and costs hearing.

The respondent had accepted appointments as attorney for property and alternate executor, and was named sole beneficiary of the client's estate, without immediately reporting these conflicts to his employer.

The Tribunal ordered permanent market bans, including a director and officer ban, and an administrative penalty of $500,000.

The Tribunal declined to order disgorgement of the estate's value, finding no causal connection between the breach and the testamentary gift.

Costs of $85,000 were awarded to Staff.

The moving defendants brought a motion on consent of all parties to transfer the action from St. Thomas to Toronto.

The action arose from a syndicated mortgage investment for a property in St. Thomas.

The court dismissed the motion, finding that none of the parties were located in Toronto and the only connection to Toronto was the location of counsel's offices.

The court held that the convenience of counsel is not a sufficient basis to transfer an action under Rule 13.1.02.

The respondent, a mutual fund dealing representative, managed the investments of an elderly, vulnerable client who was diagnosed with terminal cancer.

Shortly before her death, the client executed a will and powers of attorney naming the respondent as her power of attorney for property and personal care, alternate executor, and sole beneficiary of her estate.

The respondent failed to report these appointments and the testamentary gift to his dealer firm, contrary to MFDA Rules and the firm's policies and procedures regarding conflicts of interest.

The Capital Markets Tribunal found that the respondent breached MFDA Rules and his firm's policies, and that his failure to address these conflicts of interest constituted a breach of his statutory obligation under OSC Rule 31-505 to deal with his client fairly, honestly, and in good faith.

The applicants, CRD Construction Ltd. and Rob Leshuk, sought a declaration that their insurers, Aviva Insurance Company of Canada and Economical Mutual Insurance Company, had a duty to defend them against a counterclaim and to reimburse their legal fees.

The court found that Economical had waived its right to deny the duty to defend due to a reservation of rights letter and its acceptance.

However, the court found that the applicants' breaches of the duty of cooperation constituted non-compliance, making relief from forfeiture unavailable against Aviva, and that the applicants failed to prove their conduct was reasonable for relief from forfeiture against either insurer regarding the duty of cooperation.

Economical was ordered to defend and reimburse the applicants, while the application against Aviva was dismissed.

This endorsement from a case conference outlines a revised schedule for a class action proceeding.

The previous schedule for a certification motion was disrupted, necessitating a motion to amend the Statement of Claim.

The court approved a new timeline, setting dates for the service of motion records, cross-examinations, factum exchanges, and hearings for both the amendment motion (September 10, 2020) and the certification motion (November 26, 2020).

A case management conference was held for five related actions arising from a 2016 motor vehicle accident.

The court noted partial compliance with a previous timetable and ordered further deadlines for answering undertakings, arranging defence medical examinations, and serving expert reports.

The court also directed that the matters be tried together and admonished counsel for sending representatives without knowledge or authority to the case conference.

At an initial case conference for a proposed class action, the court set a timetable leading up to a certification motion scheduled for April 2020.

The court also addressed concerns regarding limitation periods for cross-claims against defendants against whom the plaintiffs intended to discontinue their claims, ruling that serving a cross-claim tolls the limitation period even if it must later be reconstituted as a third-party claim.

This endorsement outlines a case management order for five consolidated actions arising from a motor vehicle accident.

The court, acting as case management judge, set a timetable for the remaining procedural steps, including the completion of examinations for discovery, answering undertakings, conducting defence medical examinations, and scheduling a mediation.

The order also directed counsel to circulate a draft consent order for trial of the actions together and to advise on the continuation of an action against a specific insurer.

The appellants appealed a decision refusing to certify a class action and dismissing claims against three respondents on the basis that the claims disclosed no reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, 1992.

The appellants conceded that the motion judge made no error in law but challenged his application of the principles relating to the duty of care to the facts.

The Court of Appeal upheld the motion judge's decision, finding his reasons correct and concluding that the appellants had pleaded no reasonable cause of action against the respondents.

The court also found no error in the motion judge's assessment of costs.

The moving party obtained a judgment for conversion against a lending corporation that unlawfully seized his equipment.

After the corporation declared bankruptcy, the moving party brought an action against the corporation's insurers under s. 132(1) of the Insurance Act.

The court dismissed the motion for summary judgment, finding that the tort of conversion involves interference with possessory rights, which does not constitute 'injury or damage to property' within the meaning of s. 132(1).

The claim was characterized as pure economic loss, which is not recoverable under the provision.

The appellant appealed an order striking his fresh as amended statement of claim without leave to amend.

The motion judge had found the claim, which alleged conspiracy, deceit, negligence, and professional misconduct, did not disclose a reasonable cause of action and was an abuse of process.

The Court of Appeal dismissed the appeal, agreeing that the pleading was irreparably deficient for failing to plead material facts in support of the serious allegations advanced.

The third party, Mortgage Alliance Company of Canada Inc. (MA), moved for summary judgment to dismiss a third party claim brought by the defendant, Stephen Tzaras.

Stephen Tzaras had fraudulently transferred property and obtained a mortgage, leading to a cross-claim against him for fraud.

Stephen Tzaras then brought a third party claim against MA, alleging that MA's employee aided the fraudster and that MA failed to supervise its employee.

MA argued that Stephen Tzaras's claim was barred by issue estoppel, res judicata, or the defence of ex turpi causa.

The court dismissed MA's motion, finding that issue estoppel and res judicata did not apply as the issues in the cross-claim and third party claim were distinct, and the third parties were not involved in the prior summary judgment motion.

The court also held that ex turpi causa did not prevent a claim for contribution and indemnity from fellow fraudsters, distinguishing it from claims seeking to profit from illegal acts.

The plaintiffs sought summary judgment for $2.6 million in building replacement costs and $250,000 in business interruption losses after two windstorms damaged their mushroom farm buildings.

The defendant insurer argued that some damage pre-existed the storms and was excluded from coverage, relying on conflicting expert reports.

The court dismissed the motion for summary judgment, finding that the conflicting expert evidence regarding the cause and extent of the damage created a genuine issue requiring a trial.

The court also held that the statutory appraisal process was not appropriate for resolving disputes involving policy interpretation and causation.

The plaintiff sued his investment advisors, actuaries, and lawyers for professional negligence and breach of fiduciary duty, alleging they misled him into commuting his teacher's pension to establish an Individual Pension Plan (IPP) that risked revocation by the Canada Revenue Agency.

The actuaries and lawyers brought motions for summary judgment arguing the claims were statute-barred and the plaintiff suffered no damages, while the plaintiff brought a cross-motion for summary judgment on liability.

After the plaintiff discontinued the action against all defendants except the lawyers, the court dismissed both the plaintiff's summary judgment motion and the damages branch of the lawyers' motion, finding genuine issues for trial that were not appropriate for summary determination.

A manufacturing company was charged with two strict liability offences under the Occupational Health and Safety Act for failing to ensure safe procedures and provide adequate instruction and supervision regarding the movement of a heavy spindle component.

A worker was injured when a 10,000-pound spindle fell on his foot during an attempted rotation.

The court found the Crown proved the actus reus but accepted the due diligence defence, finding the accident was not reasonably foreseeable given the company's safety protocols, training programs, and the worker's deliberate deviation from established procedures using an unapproved method.

The defendants moved to strike a second Superior Court action arising from a real estate transaction that had already generated a small claims proceeding, an earlier Superior Court action, and a settlement.

The plaintiff alleged deceit, conspiracy, bad faith conduct, and fraudulent or negligent misrepresentation in relation to the settlement, including against opposing counsel and insurance adjusters.

The court held the pleading contained a complete absence of material facts, failed to plead the constituent elements of the asserted torts, and impermissibly attempted a collateral attack on prior proceedings.

Although strict res judicata did not apply because the causes of action and parties were not identical, the action was found to be scandalous, frivolous, vexatious, and an abuse of process, and was struck without leave to amend.

Contractors sought indemnity under a builder’s risk insurance policy for costs incurred repairing corroded aluminum window frames during construction of a Toronto building.

The corrosion resulted from exposure to de‑icing chemicals and trapped liquid caused by construction practices.

Insurers relied on policy exclusions for corrosion and faulty workmanship.

The court held the corrosion exclusion did not apply because the corrosion was caused by a peril not otherwise excluded, namely faulty workmanship, which the policy treated as covered resultant damage subject only to deduction of the cost that would have been incurred to rectify the workmanship before the loss occurred.

Coverage therefore applied, but the precise deduction for proper workmanship could not be determined on the record and required further process.

The appellants appealed the dismissal of their claim for damages arising from the expropriation of their lands by the respondent municipalities and the subsequent transfer of those lands to Toyota for an auto plant development.

The appellants argued the transfer to Toyota at the expropriation price constituted an illegal bonus under s. 106 of the Municipal Act, which should invalidate the expropriation and entitle them to damages reflecting the lands' increased value.

The Court of Appeal dismissed the appeal, holding that the expropriation and sale were separate transactions, and even if s. 106 was breached, it would not invalidate the expropriation or confer a right to damages beyond the fair value provided under the Expropriations Act.