Patrick M. Essig

The Supreme Court of Canada dismissed the appeal and held Ontario courts lack jurisdiction over the claims against the Italian defendants.

The majority accepted the Ontario cardmember agreement as a presumptive connecting contract but found the presumption rebutted because the real and substantial connection to Ontario was weak given the tort occurred in Italy and the foreign defendants’ relationship to Ontario was remote.

The dissent would have restored the motion judge’s ruling and allowed Ontario jurisdiction.

The Court of Appeal for Ontario dismissed an appeal by non-settling defendants challenging the approval of a Pierringer agreement in a multi-party motor vehicle accident case.

The court held that the agreement did not cause substantive prejudice to the non-settling defendants, as the Negligence Act places the risk of an insolvent or impecunious tortfeasor on the remaining tortfeasors, not the victim.

The court also declined to grant procedural orders in advance, leaving such matters to the trial judge.

This case conference addressed a dispute arising from a settled personal injury claim where the plaintiff refused to sign a release containing a "no admission of liability" clause.

The settlement agreement was silent on the specific terms of the release.

The court found that, in the context of an insurance claim where liability was denied throughout, a "no admission of liability" clause is objectively implied by a settlement and is standard in the industry.

The plaintiff was therefore required to sign the release with the impugned clause.

No costs were awarded.

The plaintiff, a trucking broker, sought summary judgment against two defendant carriers for damages arising from the theft of a poultry shipment, including the value of the goods and significant customs duties levied due to the theft occurring in Canada.

The defendants denied liability, citing lack of notice and unforeseeable damages.

The court dismissed the plaintiff's motion for summary judgment, finding that the factual matrix, including conflicting evidence on sub-brokering authorization, untested expert opinions, and unresolved issues regarding notice of claim under the Carriage of Goods Regulation, was not suitable for disposition under Rule 76 simplified procedure.

The matter was directed to proceed to trial.

The respondents were injured in a water taxi accident in Venice, Italy, and sued the foreign water taxi operators in Ontario, relying on their travel booking contract with Amex Canada to establish jurisdiction.

The motion judge found that the Ontario court had jurisdiction based on the fourth presumptive connecting factor from Van Breda (a contract connected with the dispute was made in the province).

The Court of Appeal allowed the appeal, holding that even if the presumptive connecting factor was established, the foreign appellants successfully rebutted it because the Ontario contract had little or nothing to do with the subject matter of the litigation against them.

The plaintiff brought a motion to set aside a registrar's dismissal order for delay in prosecuting the action.

The court considered factors including the length and explanation of litigation delay, inadvertence in missing the set-down deadline, promptness of bringing the motion, and prejudice to the defendants.

While the plaintiff failed to adequately explain the litigation delay and did not bring the motion promptly, the court found no significant prejudice to the defendants.

Emphasizing that prejudice is a key consideration and that cases should be determined on their merits, especially when delay results from counsel error, the court granted the motion and set aside the dismissal order.

No costs were awarded.

The plaintiff and the defendants are neighbours sharing a common wall.

The defendants undertook a home renovation involving the demolition of their main floor, exposing a partition wall to the elements.

The plaintiff brought a motion for a mandatory injunction to compel the defendants to address concerns regarding heat loss, moisture, mould, and pests.

The court dismissed the motion, finding that the plaintiff failed to establish a strong prima facie case of nuisance, as the evidence showed the common wall was adequately protected and the plaintiff's fears of damage were largely theoretical.

The appellants appealed a decision by Tarion Warranty Corporation denying their claim regarding the placement of a window in their new home.

The appellants argued that the window's asymmetrical interior placement constituted a defect in workmanship.

The Licence Appeal Tribunal found that while the interior spacing differential was noticeable, the window was fully functional, constructed according to the plans, and symmetrical on the exterior.

The Tribunal concluded there was no defect in workmanship and no evidence of damages, dismissing the appeal.

In a personal injury action set down for trial, the defendant sought to compel the plaintiff to attend a neurological defence medical examination, which would have been the sixth defence medical assessment.

The court held that because the action had already been placed on the trial list with the defendant’s consent, leave under Rule 48.04(1) of the Rules of Civil Procedure was required before initiating further discovery steps.

Leave had not been sought and, in any event, would not have been granted because the defendant failed to establish an evidentiary basis for an additional examination.

The court found no new or unexpected change in the plaintiff’s condition and emphasized proportionality, noting that the plaintiff had already undergone multiple defence examinations and had not served any new neurological report.

The motion was dismissed and costs were awarded to the plaintiff.