Paul M. Perell

The applicant brought an application under s. 17(8) of the Arbitration Act, 1991 to set aside an arbitral tribunal's preliminary ruling that it had jurisdiction to decide a dispute between the parties.

The dispute arose from emergency repair work performed by the applicant at the respondent's power plant, which allegedly caused $10 million in damages.

The respondent initiated arbitration based on a 2009 'Purchase Order General Terms and Conditions' document signed by the applicant.

The court conducted a hearing de novo and found that the 2009 document was an inchoate agreement that was never incorporated into the 2018 purchase order for the repair work.

Applying the objective theory of contract formation, the court concluded there was no consensus ad idem regarding an arbitration agreement.

The arbitral tribunal's decision was set aside for lack of jurisdiction.

The judgment creditor sought to enforce a Québec judgment against the debtor by garnishing funds from the debtor's wealthy spouse.

The creditor brought a motion to enforce the garnishment and a refusals motion regarding the spouse's cross-examination.

The spouse brought a cross-motion to set aside the Notice of Garnishment.

The court dismissed the refusals motion, finding the questions irrelevant to whether a debt existed.

The court granted the cross-motion and struck the Notice of Garnishment, concluding that the spouse's payments to the debtor were gratuitous gifts made out of love and affection, not remuneration for services, and therefore she was not indebted to him.

Following a successful motion for default judgment against two defendants in a class action regarding a syndicated mortgage, the plaintiffs sought costs on a substantial or full indemnity basis.

The court declined to award elevated costs, finding no reprehensible conduct or special circumstances to justify a punitive costs award.

Costs were awarded to the plaintiffs on a partial indemnity basis, fixed at $35,000 all inclusive.

In a proposed class action arising from a data breach of Marriott's hotel reservation database, the parties stated a question of law under Rule 21(1)(a) as to whether the plaintiff pleaded a legally viable cause of action for intrusion on seclusion.

The plaintiff argued that Marriott, by allegedly obtaining data under false pretenses and failing to protect it, was a 'constructive intruder'.

The court rejected this argument, following binding precedent that the tort of intrusion on seclusion applies only to actual intruders, not to defendants who fail to prevent a third-party hack.

The court concluded the Statement of Claim did not disclose a cause of action for intrusion on seclusion against Marriott.

The plaintiffs sued the defendant lawyer and accountant for professional negligence, alleging they failed to protect the plaintiffs' ownership interest in a corporation.

The defendants brought third-party claims against the corporation and its principals.

The defendants and third parties moved for summary judgment to stay the action, relying on a general release previously signed by the plaintiffs in a settlement with the corporation.

The court granted the motions, finding that although the defendants were not parties to the release, allowing the action to proceed would trigger third-party claims against the released parties, violating the no-claims-over provision.

The main action and third-party proceedings were permanently stayed as an abuse of process.

The Attorney General of Ontario brought a summary judgment motion to dismiss a malicious prosecution claim initiated by Anthony Okafor.

Okafor's claim arose from a prolonged criminal prosecution for fraud related to Workers' Compensation Board benefits, which concluded with a permanent stay of proceedings after 17 years.

The Attorney General argued that the prosecution was conducted with reasonable and probable cause and without malice.

The court granted the motion, finding that Okafor failed to establish the absence of reasonable and probable cause or the presence of malice, both essential elements for a malicious prosecution claim against Crown prosecutors.

This endorsement addresses four motions, primarily focusing on a refusals motion brought by the judgment creditor (plaintiff) in a garnishment proceeding.

The court dismissed the judgment creditor's refusals motion, finding that the questions posed to the garnishee were irrelevant to the core issue of whether the garnishee was indebted to the judgment debtor.

The judge emphasized that garnishment proceedings focus on current or future indebtedness and that questions about tax treatment or general business affairs unrelated to this core issue constitute an improper fishing expedition.

The plaintiffs, Valerie Barkley and Ronald Beaupre, brought a motion for default judgment against Nicholas Dookhie and Diane Chetram, who were noted in default in a class action concerning losses from a syndicated mortgage investment.

The court found Dookhie and Chetram liable for negligence, negligent misrepresentation, and breach of fiduciary duty, having failed to meet the standard of care for mortgage brokers by not performing due diligence, misrepresenting the investment as safe, and failing to assess client suitability or provide required disclosures.

The motion was granted, awarding the subclass of 11 class members $434,017.40 plus pre- and post-judgment interest at rates of 12% or 9% depending on the investor's referral source.

This decision resolves a carriage motion between two competing proposed class actions (the Bonnick Action and the Blackford-Hall Action) concerning alleged predatory practices in the consumer marketplace for HVAC equipment.

The court interpreted the newly enacted section 13.1 of the Class Proceedings Act, 1992, which focuses on efficiency, productivity, and proportionality.

The court granted carriage to the Bonnick Action, finding its regional scope and targeted case theory against the alleged mastermind and lender corporations to be more efficient and cost-effective than the Blackford-Hall Action's national scope and broader conspiracy claims against multiple defendants.

In a proposed class action against a firearm manufacturer for design negligence following a mass shooting, the defendant moved to strike portions of the plaintiffs' layperson affidavit evidence filed for the certification motion.

The impugned evidence included foreign patents for 'smart gun' technology and firearm-related crime statistics.

The court granted the motion to strike, finding that expert evidence in handgun design was required to establish some basis in fact for the design negligence claim, and a layperson could not provide the necessary factual logic or theory.

The court granted the plaintiffs leave to file additional expert evidence and rescheduled the certification motion.

The applicant, Alberta Cricket Association, applied to set aside an arbitration award that granted provincial sport organization status to the respondent, Alberta Cricket Council.

The arbitrator had concluded that the respondent demonstrated effective control of organized competitive cricket in Alberta, replacing the applicant as the member of Cricket Canada.

The Superior Court of Justice granted the application and set aside the award, finding that the arbitrator failed to provide adequate reasons for her decision as required by section 38(1) of the Arbitration Act, 1991.

A new arbitration was ordered.

In a proposed class action regarding the rates charged for collect calls made by prisoners in Ontario correctional facilities, the plaintiffs brought a motion to strike portions of an affidavit sworn by an employee of the defendant telecommunications company.

The plaintiffs argued the affiant was improperly giving expert opinion evidence.

The court dismissed the motion, finding that the affiant was providing factual evidence regarding the regulatory framework and the operation of the telephone system, not expert opinion.

Following the dismissal of the plaintiffs' action as statute-barred on a summary judgment motion, the successful defendant sought costs on a substantial indemnity basis, relying on a Rule 49 offer to settle for a dismissal without costs.

The court found it was reasonable for the plaintiffs to refuse the tactical offer, as their discoverability arguments were reasonably arguable.

The court awarded the defendant partial indemnity costs fixed at $12,500.

The Requestors, former students of St. Anne's Indian Residential School, brought a Request for Directions to determine whether their 2018 civil action against Canada and their former lawyers for professional negligence and breach of the Indian Residential Schools Settlement Agreement (IRSSA) could proceed in the Superior Court of Justice.

Canada argued the claims were exclusively governed by the Independent Assessment Process under the IRSSA.

The court held that the IRSSA did not oust the jurisdiction of the Superior Court of Justice, and the administrative protocol for the IRSSA was procedural, not jurisdictional.

The court directed that the civil action proceed in the Superior Court of Justice.

The Attorney General of Ontario brought an application under the Civil Remedies Act, 2001 for the civil forfeiture of approximately $3.7 million held in the respondents' bank accounts, alleging the funds were the proceeds or instruments of illegal online cannabis sales and money laundering.

The respondents had used a Hawala informal currency exchange to transfer legitimately earned Chinese currency into Canadian funds.

The court found that while a small portion of the funds could be traced to unlawful activity, the respondents were 'uninvolved interest holders' and 'responsible owners' who acquired the funds for fair value without knowledge of the illegal source.

The application for forfeiture was dismissed.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board, which confirmed a decision of the College's Complaints Committee.

The Committee had investigated a patient's complaint regarding inappropriate physical contact and, while unable to determine exactly what occurred, required the physician to be cautioned and complete a remedial program regarding boundaries.

The Divisional Court dismissed the application, finding that the investigation was adequate for a screening function and the decision was reasonable based on the physician's own admissions about accepting hugs.

The Court also rejected the argument that publishing a summary of the decision on the public register constituted an unauthorized sanction.

The plaintiff brought a motion on consent for an order granting leave to discontinue the proposed class action without costs and without notice to putative class members.

The certification motion had previously been dismissed and the action continued as an individual action.

The court granted the motion, finding no prejudice to former proposed class members who had sufficient opportunity to bring their own claims, which were being case-managed together.

The Law Foundation of Ontario brought a motion for directions regarding its statutory authority to administer the Class Proceedings Fund during the individual issues stage of a class action.

The court held that the Law Foundation has the statutory authority to provide litigation support and adverse costs protection for individual issues trials, but is not obliged to do so even if it funded the common issues stage.

Furthermore, the court determined that the Law Foundation's statutory levy applies to all recoveries, including individual issues judgments, regardless of whether it provides funding for that specific stage.

The plaintiffs sought approval of a settlement agreement with the remaining bank defendants in a national class action alleging a conspiracy to fix credit card merchant discount fees.

A joint virtual hearing was held with judges from British Columbia, Alberta, Saskatchewan, Ontario, and Quebec.

The Ontario Superior Court of Justice approved the settlement, adopting the reasons of the British Columbia Supreme Court.

Bennett Jones LLP brought an unopposed motion to be removed as lawyers of record for the Clover Leaf Defendants in a proposed class action alleging a price-fixing conspiracy.

The Clover Leaf Defendants had filed for bankruptcy protection in the US and Canada, resulting in a stay of proceedings and the sale of their assets.

As the entities' interests are now governed by bankruptcy trustees who have their own counsel, Bennett Jones LLP could no longer represent them.

The court granted the motion, noting it would not cause prejudicial delay.