Peter C. Wardle

The College of Physicians and Surgeons of Ontario brought applications to compel three physicians to cooperate with investigations into their practices, particularly concerning the issuance of COVID-19 vaccination exemptions and the dissemination of information.

The physicians refused to cooperate, asserting constitutional rights.

The court dismissed the respondents' adjournment requests and ordered them to comply with the investigations, including providing medical charts and patient information.

The court granted a publication ban on the identities of private physician sources and witnesses but denied a ban on the identities of the College's staff and the Medical Officer of Health, finding that social media comments directed at public officials, while vituperative, did not constitute actual threats of violence justifying such a ban.

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, which imposed a 12-month suspension and a general prohibition on prescribing and administering controlled substances.

The appellant argued the Committee erred by departing from a joint submission that would have allowed him to continue prescribing in an in-hospital setting, and by imposing a 12-month rather than 6-month suspension.

The Divisional Court dismissed the appeal, finding the Committee provided adequate notice of its concerns, met the high threshold for departing from a joint submission, and imposed a fit and proportionate penalty given the appellant's severe clinical deficiencies.

A motion to adduce fresh evidence was also dismissed.

The moving parties sought leave to appeal an order dismissing their motion for a stay of proceedings.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $10,000 to the responding parties.

The defendants, former legal counsel for the plaintiffs, brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence action on the basis that it was statute-barred.

The plaintiffs alleged the defendants were negligent in failing to argue the unconscionability and public policy branches of the Tercon test regarding an exclusion clause in the underlying trial against Toyota.

The court dismissed the summary judgment motion, finding that the limitation period did not begin to run until the Supreme Court of Canada denied leave to appeal in the underlying action, as the plaintiffs reasonably relied on the defendants' advice to pursue appeals and a legal proceeding was not an 'appropriate means' to seek a remedy until the appeal process was exhausted.

The applicants sought $430,000 in costs following a successful application regarding a construction dispute.

The respondents argued that a settlement offer they made should limit the applicants' costs to the period before the offer, and that disbursements for online legal research should not be compensable.

The court found that the respondents' non-monetary settlement offer was more favourable than the judgment obtained by the applicants, as it would have led to a faster final determination of the underlying dispute.

Consequently, the applicants' costs were limited to $92,119.92 incurred before the offer.

The court also disallowed the $4,060.18 claimed for online legal research, finding the applicants failed to prove these costs did not fall within standard office overhead.

The applicants, a consortium of construction companies building the Eglinton Crosstown LRT, sought declarations that the COVID-19 pandemic constituted an Emergency under their Project Agreement, entitling them to a Variation Enquiry for an extension of the Substantial Completion Date.

The respondents moved to stay the application, arguing the contract required all litigation to be deferred until after Substantial Completion.

The court dismissed the motion for a stay, finding it would cause irreparable harm by depriving the applicants of their contractual right to seek an extension.

The court granted the declarations, holding that the pandemic was an Emergency and that the respondents had required the applicants to implement additional or overriding procedures (social distancing), thereby triggering the Variation Enquiry process.

The defendants, former solicitors for the plaintiff, brought a motion for summary judgment to dismiss the plaintiff's negligence action on the basis that it was commenced beyond the two-year limitation period.

The plaintiff alleged negligence in drafting condominium documents, leading to a substantial reduction in a prior award.

The court found that the plaintiff discovered or ought to have discovered its claim against the defendants no later than July 7, 2017, when a prior court endorsement specifically addressed the inadequacy of disclosure, which was attributable to the defendants' drafting.

As the action was commenced on November 19, 2019, it was barred by the Limitations Act.

The motion for summary judgment was granted, and the action was dismissed.

The plaintiff moved for certification of a class action on behalf of debenture holders of Discovery Air Inc., alleging oppression by the defendants in a series of transactions that transferred Discovery's primary asset to Clairvest at a material discount.

Clairvest consented to certification but disputed the common issues and sought discovery directions, while the remaining defendants argued the statement of claim disclosed no cause of action against them.

The court found the pleadings sufficiently detailed to disclose a cause of action against the individual directors and the Top Aces entities.

The court certified the action, adopted a broad definition of the common issues with some additions proposed by Clairvest regarding causation and reasonable expectations, and declined to order non-party production or expanded discovery at this early stage.

The plaintiff, a debentureholder, sought to bring a class action for oppression against certain shareholders, directors, and officers of Discovery Air Inc. The defendants argued the plaintiff lacked standing due to a 'no-action clause' in the trust indenture, which they claimed required trustee authority or satisfaction of specific preconditions.

The court found that the trust indenture, when read holistically, did not preclude the plaintiff's direct action.

Alternatively, the court determined that the plaintiff had met the preconditions, including the 25% debentureholder support and a reasonable offer of indemnity, despite the trustee's commercially unreasonable demands.

The plaintiff's motion was granted, allowing the oppression action to proceed.

Following an appeal of an arbitration award where success was divided, the appellants sought costs of $24,322.76.

The respondents argued that each party should bear their own costs or, alternatively, costs should be fixed at $3,500.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and section 131 of the Courts of Justice Act.

Finding that the appellants were successful in having the arbitrator's reasons deemed inadequate on one issue, while the respondents were successful in having the matter remitted to the original arbitrator, the court concluded that success was divided and made no order as to costs.

The appellants sought leave to appeal an arbitration award arising from the termination of a medical practice business relationship.

The arbitrator had awarded the respondents $946,071, which included a refund of overhead expenses and 'Special Expenses' deducted by the appellants.

The court found that the parties had not contracted out of the right to appeal under s. 45 of the Arbitration Act.

Leave to appeal was granted because the adequacy of the arbitrator's reasons constituted a question of law.

The court held that the arbitrator's reasons were inadequate regarding the Special Expenses, as they failed to explain why the appellants were ordered to repay those amounts.

The court varied the award to order repayment of a 5% overhead increase and remitted the Special Expenses issue back to the original arbitrator for determination.

The appellant appealed a Master's decision dismissing his 16-year-old counterclaim for solicitor's negligence due to delay.

The appellant argued the Master applied the wrong rule, made palpable and overriding errors regarding his explanation for the delay and the resulting prejudice, and sought to introduce fresh evidence regarding his financial situation.

The Divisional Court dismissed the appeal and the motion to admit fresh evidence, finding the Master correctly applied Rule 48.14, made no palpable and overriding errors in assessing the delay or prejudice, and that the fresh evidence did not meet the Palmer test.

The appellant appealed the dismissal of its application for judgment against the respondent for $7,451,662.65 under a settlement agreement.

The parties had contracted for construction of the western portion of the Eglinton Crosstown Tunnel.

The respondent was required to obtain third-party liability insurance, with the appellant as an additional insured.

The appellant was responsible for paying 100% of deductibles for third-party claims.

After substantial performance, the parties settled outstanding contract disputes with mutual releases that included a clause preserving rights and obligations regarding insurance policies.

The respondent withheld $6.4 million from the final settlement payment, claiming it was due for outstanding deductible claims.

The appellant argued the settlement released it from deductible obligations.

The motion judge dismissed the application, finding the release did not release the appellant from its deductible obligations.

The Court of Appeal upheld this decision, finding the release language clearly preserved all rights and obligations relating to insurance policies, including deductible payment obligations.

The plaintiff tenant sought a quia timet interlocutory injunction to prevent the defendant landlord from terminating a commercial lease and re-entering the premises.

The restaurant premises had suffered extensive flood damage, and the landlord issued a notice of default citing the tenant's failure to repair with due diligence.

The court applied the RJR-MacDonald test, finding the tenant established a strong prima facie case, would suffer irreparable harm by losing its business, and the balance of convenience favoured preserving the status quo.

The court granted the injunction and alternatively granted relief from forfeiture.

The appellants appealed a Master's decision refusing to set aside a Registrar's administrative dismissal of their solicitors' negligence action for delay.

The action arose from a Ponzi scheme and had been dormant for years while the appellants were involved in other proceedings.

The Divisional Court found no error in the Master's application of the Scaini test, agreeing that the appellants failed to provide a satisfactory explanation for the delay and that the respondents suffered significant prejudice.

The appeal was dismissed.

The applicant physician sought judicial review of an interim order by the College of Physicians and Surgeons of Ontario imposing strict practice conditions pending a discipline hearing for alleged sexual abuse.

The allegations involved inappropriate comments and touching during an auscultation.

The Divisional Court allowed the application and set aside the interim order, finding that the Committee lacked evidence to conclude the physician was likely to expose patients to harm or injury.

The court held that the Committee improperly relied on its own clinical assumptions rather than evidence to reject the physician's explanation of his examination technique.

The applicant sought judgment for $7.45 million pursuant to a settlement agreement.

The respondent claimed a right of set-off for insurance deductibles under the construction contract's owner-controlled insurance policies.

The applicant argued that a release executed as part of the settlement extinguished the respondent's right to claim the deductibles.

The court interpreted the release in its factual matrix and concluded it was limited to the five specific disputes settled, and did not terminate the applicant's ongoing obligation to pay deductibles under the continuing contract.

The application was dismissed.

The defendants sought leave to appeal a motion judge's decision dismissing, in part, their motion for summary judgment in a solicitor's negligence action.

The defendants argued the motion judge failed to apply the 'but for' causation test and that the claim was statute-barred.

The Divisional Court dismissed the motion for leave to appeal, finding no conflict in principle with other cases and agreeing with the motion judge that a factual dispute regarding when the loss arose required a trial.

The court also found the issue was not of such importance to warrant leave.

This endorsement addresses the costs of a prior motion where the defendants were substantially, but not entirely, successful, having secured the dismissal of two out of three claims.

The defendants sought two-thirds of their partial indemnity costs, calculated at $12,877.35.

The plaintiff argued that costs should be deferred to the trial judge or that no costs should be awarded due to divided success.

The court found the defendants' claim for costs to be entirely reasonable and ordered the plaintiff to pay the specified amount within 30 days.

This endorsement addresses the costs of an action brought by CIT Financial Ltd. against several defendants, which was dismissed on summary judgment as statute-barred.

The defendants sought costs on a partial indemnity scale, including legal and expert fees.

The court considered the complexity, importance, and reasonable expectations of the parties.

While the court found the defendants were diligent in bringing their summary judgment motion after discoveries, it significantly reduced the claimed expert fees for Zeifmans (to one-third) and Duff & Phelps (to 50%).

This reduction was due to the defendants' experts' unreasonable refusal to cooperate with the plaintiff's expert, leading to unnecessary duplication of work in calculations.

Ultimately, CIT Financial Ltd. was ordered to pay the defendants legal fees totaling $1,706,147.92 and reduced disbursements (including expert fees) totaling $550,182.34.