Nancy Jane Tourgis

This decision addresses a request to coordinate two appeals arising from a single lower court decision that dismissed defamation actions under anti-SLAPP legislation.

The appellants sought separate hearings, while the respondents requested the appeals be heard together.

The appeal management judge ordered the appeals to be heard concurrently, emphasizing judicial economy and efficiency, and finding no principled reason to hear them separately despite the appellants' arguments regarding factual and legal dissimilarities between the two cases.

The appellants sought to appeal an interlocutory order dismissing their motion to remove a litigation guardian.

The Court of Appeal determined it lacked jurisdiction as the order was interlocutory, not final, and quashed the appeal.

The panel then reconstituted as the Divisional Court and denied leave to appeal, finding no confusion in the relevant rule (r. 7.06(2)) and no general importance warranting leave.

The parties in a certified class proceeding regarding purchasers of hotel units in the Trump Tower sought a consent order approving the form and content of the proposed Notice of Settlement Approval Hearing.

The court reviewed the proposed notice plan, which included direct mail, email, a dedicated website, and a Facebook page to reach geographically dispersed class members.

Finding the notice and notice plan satisfactory under section 27.1(8) of the Class Proceedings Act, 1992, the court granted the order.

The Estate Trustee During Litigation (ETDL) brought a motion for directions to approve the sale of a commercial property belonging to the deceased's estate.

The sale was supported by one residual beneficiary but opposed by the other, who argued the property was undervalued.

The court applied the principles for approving a sale by a court-appointed receiver or trustee, finding that the ETDL had the power to sell, acted in good faith, and made sufficient efforts to obtain the best price by exposing the property to the market.

The court approved the sale, concluding it was in the best interests of the estate, and awarded costs to the ETDL and the supporting beneficiary.

The plaintiffs brought a motion for an interlocutory injunction to prevent the sale of a commercial property, or alternatively, to hold 50% of the net proceeds of any sale in trust.

The plaintiffs claimed that a 1997 transfer of their 50% interest in the corporation owning the property was subject to an unwritten trust agreement.

The court dismissed the motion, finding that while there was a serious issue to be tried, the plaintiffs failed to demonstrate irreparable harm as they were ultimately seeking monetary compensation.

Furthermore, the balance of convenience favoured the defendants due to the plaintiffs' significant delay in prosecuting the action.

The parties brought competing motions regarding three disputed terms of their 2019 Minutes of Settlement: the removal of snowmobiles, the form of a share transfer agreement, and the payout of a life insurance policy.

The court ordered the applicant to remove the snowmobiles by a specific date, rejected the applicant's complex share transfer agreement in favour of a simpler one with basic representations and an indemnity, and refused to set aside the life insurance provision, finding no unilateral or mutual mistake that would justify rescission.

The respondent, KingSett Mortgage Corporation, moved to quash an appeal brought by 30 Roe Investments Corp. from an order appointing a receiver over nine condominium units. 30 Roe argued it had an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act and alternatively sought leave to appeal under s. 193(e).

The Court of Appeal granted the motion to quash, confirming that no appeal as of right exists from a receivership order under s. 193(c).

The Court also dismissed the motion for leave to appeal, finding the proposed appeal lacked merit, did not raise an issue of general importance, and would unduly hinder the receivership proceedings.

The respondent law firm brought a motion to strike a supplementary motion record and subsequent affidavits delivered by the applicants in an application to assess the firm's accounts.

The applicants delivered the 1,229-page supplementary record over six years after the application was commenced, without leave, and after the applicants had already been cross-examined on their original affidavits.

The court granted the motion to strike, finding that the late delivery constituted improper case-splitting and an attempt to 'shore up' evidence post-cross-examination.

The court also denied the applicants' request to cross-examine a witness, finding they had forfeited the right by failing to exercise reasonable diligence.

The appellants, Amber Baptiste and Every Girl Counts LLC, appealed two Superior Court orders: one recognizing a California judgment against them in favour of the respondent, Michael Goguen, and another allowing enforcement of that judgment by seizing funds in Alberta.

The appellants argued the Ontario court lacked jurisdiction over funds outside the province.

The Court of Appeal dismissed the appeal, affirming the Ontario court's in personam jurisdiction over the appellants and CIBC (whose head office is in Ontario), finding it irrelevant that funds were transferred to Alberta.

The court applied principles from *Chevron Corp. v. Yaiguaje*, emphasizing that requiring assets to be present in the jurisdiction at the time of enforcement is not conducive to fairness in a globalized world.

Talon International Inc. brought a motion to remove Mitchell Wine and MSTW Professional Corporation as lawyers of record for the defendant Byung Sook Min, alleging a conflict of interest.

The conflict arose from Mr. Wine's prior representation of 22 other unit purchasers in 19 actions against Talon, which had settled with confidentiality provisions.

Talon argued Mr. Wine possessed confidential settlement information relevant to the current action.

Applying the MacDonald Estate and Celanese Canada Inc. tests, the court found Mr. Wine's new retainer was sufficiently related to his previous representation, creating a rebuttable presumption of confidential information possession that was not rebutted.

The court concluded there was a real risk of prejudice to Talon that could not be overcome by remedies short of disqualification, balancing the integrity of the justice system against the litigant's choice of counsel.

The motion was granted, and Mr. Wine and his firm were removed as counsel.

The applicant purchased two commercial condominium units from the respondent developer.

The purchase price was to be adjusted based on the 'actual gross area' of the units, calculated in accordance with the BOMA 1996 Standard.

The applicant argued the price should be based only on the net usable area, while the respondent argued it must include a gross-up for floor and building common areas.

The court dismissed the application, finding that the contract's explicit reference to the BOMA 1996 Standard objectively demonstrated the parties' intention to include the proportionate share of common areas in the calculation of the purchase price.

The plaintiffs brought two defamation actions against the defendants arising from tweets and emails that characterized the plaintiffs' own tweets as homophobic and transphobic.

The defendants moved to dismiss the actions under the anti-SLAPP provisions of section 137.1 of the Courts of Justice Act.

The court found that the expressions related to matters of public interest and that, while the defamation claim had some merit, the defendants had a valid defence of fair comment given the highly politicized and hyperbolic nature of Twitter.

The actions were dismissed as strategic litigation against public participation.

The defendant 2613497 Ontario Inc. moved under Rule 37.14 to set aside a Mareva injunction and discharge Certificates of Pending Litigation, arguing the original order was obtained without notice and without full and fair disclosure.

The court found that the defendant's lawyers of record had participated in case conferences and filed responding materials for the original motion, establishing that the defendant had notice.

As the motion was not made without notice, Rule 37.14 did not apply, and the court dismissed the motion, awarding costs to the plaintiffs.

The applicant, a municipal councillor, brought a motion for directions to compel the Integrity Commissioner to file the entire record of proceedings, including confidential evidence, for her pending judicial review application.

The applicant argued that the Commissioner's report waived the statutory duty of secrecy and that procedural fairness required full disclosure.

The Divisional Court dismissed the motion, holding that the Commissioner's statutory duty to preserve secrecy under s. 223.5 of the Municipal Act prevails and is not overridden by the general principles of open court proceedings or the Statutory Powers Procedure Act.

The plaintiffs brought a motion seeking leave to issue a certificate of pending litigation (CPL) and interim injunctive relief to compel the defendants to sign a severance application and to enjoin them from interfering with a Local Planning Appeal Tribunal (LPAT) proceeding.

The defendant Sedona Place Co-Ownership Inc. sought an order directing the proceeding to arbitration.

The court granted the CPL, finding a triable issue involving an interest in land and that damages were not an adequate remedy.

The court also granted the mandatory injunction compelling the severance consent, noting the defendants' breach of the option agreement and the potential for irreparable harm to the plaintiffs' development.

A prohibitory injunction preventing interference with the LPAT hearing was also granted based on the defendants' past conduct and potential irreparable harm.

The action was stayed to allow the parties to proceed to arbitration on agreed terms, with residual court jurisdiction.

Costs were awarded to the plaintiffs.

The appellants appealed a summary judgment ordering them to pay $185,999.32 under Minutes of Settlement and dismissing their counterclaim.

The appellants argued the Minutes were unenforceable due to economic duress, claiming they were pressured by a construction lien that prevented refinancing.

The Court of Appeal upheld the motion judge's finding that there was no genuine issue for trial, as the appellants failed to satisfy the first prong of the economic duress test: they did not protest, had independent legal advice, had alternative courses of action, and took no timely steps to avoid the agreement.

The appeal was dismissed.

The moving parties sought an adjournment of four related applications and two summary judgment motions due to the late filing of a responding record containing an expert report.

The responding party did not oppose the adjournment but argued the expert report should not have been a surprise.

The court granted the adjournment, extended the deadline to set three of the related cases down for trial, and reserved the costs of the appearance to the hearing on the merits.

The appellants appealed a Master's decision dismissing their motion to amend their statement of defence to plead section 8 of the Interest Act.

The appellants argued they had a right to amend as a matter of law because the respondents had amended their claim, and that statutory defences do not need to be pleaded.

The Divisional Court dismissed the appeal, holding that affirmative and statutory defences must be pleaded to avoid trial by ambush.

The Court also upheld the Master's finding that the appellants' unexplained four-year delay in raising the defence resulted in presumed and actual non-compensable prejudice to the respondents, who lost opportunities to strategize and settle.

The Representative Plaintiffs sought substantial or partial indemnity costs following a successful conditional certification motion in a class action.

The court awarded partial indemnity costs of $35,000 for the certification motion and $1,000 for costs submissions.

The court rejected substantial indemnity, finding the defendant's conduct in resisting certification was not egregious and did not warrant a punitive award.

It also found the plaintiff's Offer to Settle ill-advised and an "ill fit" for a certification motion, which is a mandatory procedural step that does not decide the merits of the case.

The plaintiffs brought a motion to revise a conditional Certification Order, approve the Notice of Certification, and determine costs.

The court found it unnecessary and inappropriate to revise the Certification Order, as it was properly taken out and there was no mistake.

The court approved a modified Notice of Certification and directed the parties to make written submissions on costs.