Patrick Healy

The plaintiffs sought damages and declarations regarding environmental contamination at 65 Heward Avenue.

The defendants moved to strike the plaintiffs' amended statement of claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action, arguing that the plaintiffs knew of the contamination upon purchase, the limitation period had expired, and the claim lacked sufficient particulars for negligence, strict liability, and statutory claims under the Environmental Protection Act.

The court dismissed the motion, finding that the defendants were not barred by delay or pleading over, the plaintiffs' knowledge of contamination was not fatal, the limitation period issue required evidence, and the claim provided sufficient particulars for all causes of action, including novel applications of strict liability.

The plaintiffs sought damages and declarations against multiple defendants, including Akzo Nobel N.V. (NV), for environmental contamination at 65 Heward Avenue, Toronto.

NV, a Netherlands corporation, moved under Rule 21.01(3)(a) to dismiss the action against it for lack of jurisdiction, arguing no real and substantial connection to Ontario.

The court found that the plaintiffs failed to establish any presumptive connecting factors (domicile, carrying on business, tort committed, or contract made in Ontario) linking NV to the province.

The court rejected the group enterprise theory and the argument that assuming liabilities or providing indemnities constituted carrying on business in Ontario for jurisdictional purposes.

Consequently, the claim against Akzo Nobel N.V. was stayed/dismissed.

Wiseway Global Canada Consulting Ltd. sought leave to further amend its statement of claim following examination for discovery.

CTBC Bank Corp. (Canada) opposed the motion, arguing that many proposed amendments improperly pleaded evidence and argument, contained unnecessary repetition and inconsistencies, and included unsupported or scandalous headings.

The court, applying Rule 26.01 of the Rules of Civil Procedure, granted leave in part.

It allowed most of the proposed amendments, emphasizing that a statement of claim should contain all material facts and that inconsistencies with a reply are not a bar to amendment.

However, the court denied leave for certain paragraphs and a heading that were found to improperly plead evidence or argument, or were unsupported by material facts (specifically, the "Ponzi scheme" characterization).

The parties, former spouses and equal partners in two farming businesses, brought cross-motions for interim relief.

The Applicant sought dissolution of the partnership, winding up of the corporation, bifurcation of the trial, and sale of a jointly owned property.

The Respondent sought orders related to financial management, access to business records and accounts, and remedies for alleged oppression and breach of fiduciary duty by the Applicant.

The court dismissed all of the Applicant's motions, finding them premature or inappropriate for interim relief.

The court granted significant portions of the Respondent's motion, finding that the Applicant had engaged in conduct that unfairly disregarded his interests and breached her fiduciary duties, particularly concerning financial transparency and transactions with family members.

Temporary orders were issued to ensure the Respondent's access to financial information and to restrict the Applicant's unilateral financial decisions, especially those involving family.

The plaintiff buyer brought a motion for a preservation order or a certificate of pending litigation (CPL) regarding an abortive real estate transaction for a residential property.

The defendant seller repudiated the agreement, arguing it was an unconscionable contract and that the plaintiff, a real estate lawyer, took advantage of her vulnerability.

The court dismissed the request for a preservation order, finding it inappropriate for real property in this context.

However, the court granted the CPL, finding that the plaintiff had a reasonably strong prima facie claim for specific performance and that the property was unique in the requisite legal sense.

Procor Limited, a defendant, brought a motion for partial summary judgment seeking to dismiss the plaintiff Erectoweld Company Limited's claim against it regarding perchloroethylene (PCE) contamination on the plaintiff's land.

The plaintiff theorized the PCE originated from a massive spill on Procor's property that migrated to its land.

The court dismissed the motion, applying the "litigation as a whole" principle and the "bright line test" for partial summary judgment.

The court found that granting partial summary judgment would not resolve the core issue of the PCE's origin, would risk duplication of evidence, and could lead to inconsistent verdicts given the remaining claims against other defendants and their cross-claims against Procor.

Following a jurisdiction motion where the defendant insurers successfully argued that the court lacked jurisdiction over the proposed class actions, the insurers sought costs of approximately $620,000.

The court found this request preposterous and excessive, fixing costs payable by the plaintiffs to the 13 non-settling insurers at $28,000 on a partial indemnity basis.

The costs payable by the government regulator to the plaintiffs were settled at $12,500.

The plaintiffs filed proposed class actions against 15 auto insurers and the provincial regulator, FSCO, alleging improper deduction of HST from statutory accident benefits.

The defendant insurers brought motions to dismiss the actions for lack of jurisdiction, arguing the Licence Appeal Tribunal (LAT) has exclusive jurisdiction over such disputes.

The court agreed, dismissing the actions against the insurers and refusing to approve two early settlements, as the claims fell squarely within the LAT's exclusive jurisdiction under s. 280 of the Insurance Act.

However, the court found it had jurisdiction to hear the claims against FSCO for regulatory negligence, as those allegations did not directly concern benefit entitlements or amounts.

This endorsement addresses the costs following a four-day trial where the plaintiff, Infinity Construction Inc., was completely successful, obtaining judgment for over $1.19 million plus interest.

The plaintiff sought costs on a substantial indemnity scale, arguing the defendants' deliberate withholding of known owed funds was vexatious and tactical.

The defendants argued for partial indemnity costs, disputing the plaintiff's hours and the applicability of Rule 49.10.

The court found that Rule 49.10 was not engaged as the plaintiff's offer was not made seven days before trial.

While the defendants' conduct in withholding payment came close to reprehensible conduct, it did not meet the high threshold required for substantial indemnity costs in these circumstances.

Exercising its discretion under the Courts of Justice Act and Rule 57.01, the court found the plaintiff's counsel's fees reasonable and awarded the plaintiff $175,000 inclusive of HST on a partial indemnity basis.

Following the dismissal of the action against it, the defendant Covanta sought partial indemnity costs of $62,323.43 plus incidental costs of $312,887.85.

The plaintiff argued the amounts were excessive and that incidental costs were effectively a claim for damages.

The court agreed with the plaintiff, finding the incidental costs inappropriate for a summary costs motion and the legal fees excessive compared to the plaintiff's own costs outline.

The court fixed costs at $40,000 payable by the plaintiff to Covanta.

The moving party, an owner/contractor on a construction project, brought a motion under section 47(1) of the Construction Lien Act to dismiss the plaintiff's action against it.

The plaintiff's construction lien had previously been vacated by the posting of security by the general contractor.

The court held that once a lien is vacated by the posting of security, the owner is no longer a proper party to the lien action as there is no privity of contract.

Furthermore, the court applied binding appellate authority to hold that claims for unjust enrichment and quantum meruit cannot be joined in a lien action under section 55(1) of the Act.

The motion was granted and the action against the moving party was dismissed.

The applicant, a former CEO of Aphria Inc., sought damages for the company's refusal to honor his stock options and, in the alternative, relief from forfeiture.

The court found that the stock options had expired according to the terms of the Aphria Incentive Stock Option Plan, which was incorporated by reference into the applicant's agreements.

Furthermore, the applicant was found to have breached a non-competition agreement by leasing land to a medical marijuana producer during the restricted term.

Consequently, the court dismissed the application, denying both the claim for damages and the request for equitable relief from forfeiture due to the applicant's breach of the non-competition agreement.

The defendants/plaintiffs by counterclaim, Canopy Growth Corporation and Canopy Hemp Corporation ("Canopy"), brought a motion seeking preliminary relief in relation to pending summary judgment motions.

Canopy sought an order adjourning the summary judgment motions, establishing a discovery plan, ordering specific document production, and examinations of non-parties.

The plaintiff and defendants by counterclaim opposed the motion.

The court, applying the principles from Hryniak v. Mauldin, found that the summary judgment motions were not simple questions of law and contractual interpretation and that Canopy required some evidence to respond fairly.

The court ordered specific document production from the defendants by counterclaim and examinations of non-parties Vic Neufeld and John Cervini under Rule 39.03, but declined to order a full discovery plan or affidavits of documents.

The court also clarified its lack of jurisdiction to adjourn a judge's summary judgment motion or vary a judge's timetable.

In a priority dispute following the bankruptcy of a paving company, a bond company argued that funds held by the receiver in a project account were statutory trust funds under the Construction Lien Act and therefore excluded from the bankrupt's estate under s. 67(1)(a) of the Bankruptcy and Insolvency Act.

The court dismissed the trust claim, finding that the funds lacked the certainty of subject matter required to constitute a true common law trust, as they were not identifiable or held separately prior to the receivership.

Consequently, the funds were to be distributed under the BIA scheme.

The appellant appealed a decision of the Superior Court of Justice dismissing an application.

The Court of Appeal reversed the application decision.

As a result, the costs order awarded to the respondent in the amount of $45,000 was set aside, and costs in the application were awarded to the appellant on a partial indemnity basis in the same amount, inclusive of HST and disbursements.

This is a costs endorsement on appeal from a Superior Court judgment.

The appellant was awarded costs of the motions before the motion judge in the amount of $85,000 inclusive of disbursements and HST.

The appellant purchased a cottage property through an online auction conducted by the respondent auction company.

After the high bid was accepted and a purchase and sale contract executed, the sellers refused to close.

The appellant subsequently negotiated a second purchase and sale contract directly with the sellers and the sale closed.

The auction company claimed entitlement to the buyer's premium from the appellant's escrow deposit, arguing the two contracts were effectively one continuous agreement.

The Court of Appeal allowed the appeal, holding that the buyer's premium was not payable when the sale failed to close due to the seller's default, and that the subsequent direct purchase did not trigger the obligation to pay the premium under the auction contract.

The appellant loaned $500,000 to a company with the understanding that it would receive registered shares in a related company as consideration.

Years later, the respondent guaranteed repayment of the loan.

The respondent sought summary judgment to declare the guarantee unenforceable, arguing that a trust agreement had discharged the loan by providing the appellant with a beneficial interest in shares.

The motion judge agreed, but the Court of Appeal reversed, finding that the motion judge's conclusion contradicted his own factual findings and misconstrued the purpose of the trust agreement.

The court held that the trust agreement was intended to provide security, not to discharge the loan, and that the guarantee and general security agreement were enforceable under the Business Corporations Act.

Joyce Bernstein, the successful plaintiff in a class action certification motion against Peoples Trust Company and Peoples Card Services LLP, sought costs of $146,492.72.

Peoples Trust disputed the amount, arguing for divided success due to a reduced class period based on limitation periods, and proposed $120,000 with a portion payable in the cause.

The court awarded the full amount sought by Bernstein but ordered $10,000 of it to be payable in the cause.

The court found no divided success on the certification motion itself but deemed the plaintiff's failure to concede the limitation period issue as conduct that unnecessarily lengthened proceedings, warranting a small portion of costs to be payable in the cause as a salutary message against over-pleading in class actions.

The plaintiff brought a motion to certify a class action against the defendants regarding prepaid payment cards.

The plaintiff alleged that the defendants breached the Consumer Protection Act, 2002 and O. Reg. 17/05 by charging illegal fees and imposing expiry dates on the cards.

The defendants argued that the cards were exempt from the legislation.

The court found that the plaintiff satisfied the five-part test for certification under the Class Proceedings Act, 1992, and certified the action as a class proceeding, subject to an adjustment to the class definition to account for the limitation period.