Neil G. Wilson

The defendants sought leave to appeal an order compelling them to answer questions refused during an examination in aid of execution.

They also requested an extension of time to file the notice of motion for leave to appeal and a stay of the order pending appeal.

The court dismissed the motion for leave to appeal, finding that neither branch of the test under Rule 62.02(4) was met.

There was no conflicting decision on a matter of principle, and no serious doubt about the correctness of the order, nor did the proposed appeal raise matters of general importance beyond the immediate parties.

Consequently, the requests for an extension of time and a stay were also dismissed.

The applicant, Liliana Di Cienzo, challenged the constitutionality of a provincial regulation under rule 14.05 of the Rules of Civil Procedure, arguing it violated her Charter rights.

The respondent, Attorney General of Ontario, moved to transfer the application to the Divisional Court, asserting that constitutional challenges to regulations fall under judicial review and the Divisional Court's exclusive jurisdiction.

The Superior Court dismissed the motion, holding that it has jurisdiction to hear rule 14.05 applications for declarations challenging the constitutional validity of subordinate legislation, particularly when the challenge is not to the statutory power to make the regulation (ultra vires) but to the regulation itself for Charter non-compliance.

The court emphasized the procedural advantages of the Superior Court for such applications, including the ability to direct a trial of an issue if facts are disputed.

The homeowner appealed a Tarion Warranty Corporation decision denying claims that his master bedroom was smaller than the Ontario Building Code minimum and that a flooring transition was defective.

The Licence Appeal Tribunal found that the bedroom size met the OBC requirements when measured according to industry practice, and that the flooring transition was suitably eased and not defective.

The appeal was dismissed.

The applicant condominium corporation sought relief from an allegedly oppressive shared facilities agreement (CRA) imposed by the declarant developer, and brought several actions for construction deficiencies and property management breaches.

The court found the CRA produced an oppressive result due to the conflicted manager's conduct and amended the agreement to allow the condominium to terminate the manager without cause.

The court also ruled on multiple summary judgment motions regarding construction deficiencies, dismissing the first action as a nullity for lack of statutory notice to owners, and granting summary judgment on various specific deficiency claims based on limitation periods and warranty coverage.

Damages were awarded for specific proven deficiencies and against the former property manager for failing to maintain insurance records.

The plaintiffs sued their former lawyers for solicitor's negligence, alleging they missed a limitation period in a prior action against Mitsubishi, thereby losing the opportunity to appeal on the merits of misrepresentation, negligence, and Arthur Wishart Act claims.

The defendant law firm moved for partial summary judgment to dismiss the misrepresentation component of the damages claim, arguing that the original motion judge's finding of no misrepresentations was not appealed.

The court granted the motion, finding that the plaintiffs' Notice of Appeal did not challenge the motion judge's findings on common law or statutory misrepresentation, thus no "lost opportunity" existed for this specific claim.

Costs were deemed a wash due to the defendants' initial broader motion.

The parties submitted a dispute to arbitration by a Rabbinical Court.

During the proceedings, the panel met ex parte with a previous arbitrator without notice to the parties, breaching the agreed-upon procedure.

The appellant discovered this and sent his own ex parte communication to the panel.

The application judge found a procedural breach under art. 34(2)(a)(iv) of the UNCITRAL Model Law but exercised her discretion not to set aside the award, citing factors including the appellant's own ex parte conduct and the lack of actual prejudice.

The Court of Appeal dismissed the appeal, holding that the application judge properly balanced the relevant factors to determine whether the breach caused real unfairness or practical injustice.

The appellant appealed the Registrar's proposal to revoke his real estate broker registration based on a past criminal conviction for conspiracy to traffic in cocaine and an alleged failure to disclose a conviction for refusing to provide a breath sample.

The Tribunal found that the non-disclosure was not deliberate, as the breath sample conviction had been overturned on appeal.

Regarding the drug conviction, the Tribunal considered the appellant's significant rehabilitation, his compliance with registration conditions over nine years, and strong character evidence.

The Tribunal concluded that the appellant's past conduct did not afford reasonable grounds to believe he would not carry on business with honesty and integrity, and directed the Registrar not to carry out the proposal.

The defendants brought a motion for summary judgment dismissing an action arising from a power outage during a wedding reception caused by a severe thunderstorm.

The plaintiffs alleged breach of contract, negligence, and emotional distress, arguing the venue failed to provide backup power and mishandled the event during the outage.

The court held that exclusion clauses in the catering agreement barred liability for damages arising from utility shortages and acts of God.

The court also found the plaintiffs failed to comply with a contractual requirement to provide written notice of any claim within 48 hours and declined to grant relief from forfeiture.

In any event, the plaintiffs failed to establish any breach of contract or negligence.

The appellants appealed a summary judgment ordering them to pay the outstanding balance on a second mortgage.

They argued the mortgage action should be considered alongside a construction dispute involving the respondent, claiming duress, bad faith, and equitable set-off.

The Court of Appeal upheld the motions judge's findings that the appellants were sophisticated parties with independent legal advice, the construction project was completed within budget, and there was no bad faith or fraud.

The appeal was dismissed, and the refusal to consolidate or stay the proceedings was upheld.

Following a motion for security for costs, the defendants sought additional costs related to the fees of former counsel and other related issues.

The court declined to increase the amount of security for costs because the defendants provided redacted accounts that failed to show the nature of the work performed, despite the court previously requesting such evidence.

The court also rejected arguments that a prior settlement offer should affect the costs analysis, as the amount ordered was lower than the offer and the conduct of the plaintiff did not justify substantial indemnity costs.

Additional costs requested for undertakings issues were also denied.

The previously ordered security and costs structure remained unchanged.

The applicants sought to set aside an international commercial arbitration award arising from a failed commercial real estate relationship.

The court held that the arbitration agreement did not bar recourse under Article 34 of the Model Law where mandatory procedural protections and public policy were engaged.

The arbitral tribunal's undisclosed meeting with a prior adjudicator without notice to the parties breached the parties' arbitration agreement and met the threshold for potential relief under Article 34(2)(a)(iv).

However, weighing the seriousness of the breach against prejudice, waiver-related conduct, and the practical consequences of setting aside the award, the court exercised its discretion not to disturb the award.

The defendants brought a motion for security for costs in a construction lien action, alleging the plaintiff had insufficient assets.

The plaintiff did not assert impecuniosity or provide financial documents.

The court granted leave for the motion under s. 67(2) of the Construction Lien Act and ordered the plaintiff to pay $36,000 in security for costs in two installments, plus costs of the motion.

Following the dismissal of the defendant's motion for leave to appeal, the court received written submissions on costs.

The successful parties, the plaintiff and the subrogated plaintiff (OHIP), were awarded costs on a partial indemnity basis, fixed at $2,500 each, payable by the defendant.

The defendant brought a motion for leave to appeal a decision dismissing his motion for summary judgment based on a limitation period defence.

The motion judge had found that the limitation issue required a trial due to factual disputes regarding Quebec law and the plaintiff's knowledge.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's decision.

The defendant moved to strike portions of an amended reply as improper reply under the Rules of Civil Procedure, arguing the impugned allegations belonged in the statement of claim or were non-responsive to the amended statement of defence.

The plaintiff argued the motion was barred because the defendant had taken further steps after learning of the alleged irregularity, including scheduling continued discoveries and serving notices of examination.

The court held that those steps constituted an implied waiver under Rule 2.02(b), and refused leave to challenge the pleading.

Although the motion to strike and the alternative request to amend the defence were dismissed, the court ordered that the defendant remained entitled to a continued examination for discovery of the plaintiff’s representative.

Following an order granting the plaintiff leave to discontinue the action, the court addressed the quantum of costs payable to the defendants.

The defendants sought over $25,000 in partial indemnity costs for the relevant period.

The court reviewed the bill of costs and disallowed several amounts, including a double-counted HST charge, time spent after the service of the notice of discontinuance, work related to unsuccessful security for costs proceedings, and excessive communication charges.

Applying the principles under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs at a fair and reasonable amount significantly lower than claimed.

After accounting for a set-off from costs previously awarded to the plaintiff on appeal, the net amount owing was reduced accordingly.

The moving party condominium corporation brought a motion to quash an appeal of an application judge's order appointing an arbitrator.

The responding parties sought to appeal the appointment, arguing the application judge erred in referring all issues to the arbitrator without assessing their arbitrability.

The Court of Appeal quashed the appeal, holding that section 10(2) of the Arbitration Act, 1991 explicitly precludes any appeal from a court's appointment of an arbitral tribunal.

The plaintiff dentist alleged that the defendants supplied defective dental equipment causing business losses, property damage from leaking equipment, and delays in opening a second clinic.

On competing motions relating to documentary production and discovery procedures, the court applied the relevance standard under Rule 30.02 and the proportionality principle under Rule 29.2.03 of the Rules of Civil Procedure.

The court ordered various categories of document production from both sides, including financial records, repair invoices, equipment images, and documents relevant to alleged lost profits and misrepresentation.

The court also permitted the plaintiff to examine an individual defendant personally at discovery due to allegations that he was the directing mind of the corporate defendant and personally involved in the representations at issue.

A discovery plan was ordered to move the litigation forward.

The respondent brought a motion to adjourn the commencement of the hearing to September 5, 2014.

The added party consented, but the appellants opposed the motion.

The Tribunal granted the adjournment and ordered the respondent to pay the appellants $500.00 in costs.

The Tribunal also ordered that witnesses subject to pending motions to quash their summonses need not attend the hearing until those motions are resolved.

Following a partially argued motion involving consolidation with a Small Claims Court action, a stay of the Small Claims proceeding, or alternatively striking portions of a counterclaim, the parties settled the motion except for the issue of costs.

The court considered written submissions and the discretionary authority over costs under s. 131(1) of the Courts of Justice Act and the factors under Rule 57.01(1) of the Rules of Civil Procedure.

Given that the motion resolved by settlement and considering the settlement terms, the court held that it was in the interests of justice for each party to bear its own costs.

No costs were awarded.