Peter J. Cavanagh

The plaintiffs brought a motion under Rule 25.11 to strike out three paragraphs of the defendants' Statement of Defence and Counterclaim, arguing they were scandalous, frivolous, or vexatious.

The underlying action involved a dispute over a joint real estate venture and a Memorandum of Understanding.

The court declined to strike two paragraphs, finding them relevant to the issues of equity split and unconscionability.

However, the court struck out one paragraph alleging an anonymous threatening phone call, as it did not allege the call was made by the plaintiffs and was included solely to cast them in a bad light.

The plaintiff moved to quash the defendant's appeal of an order granting the plaintiff leave, nunc pro tunc, to commence a derivative action.

The plaintiff argued the order was interlocutory and required leave to appeal.

The Divisional Court held that the motion judge's order was a final order because it disposed of the defendant's limitation period defence, thereby depriving the defendant of a substantive right that could have been determinative of the entire derivative action.

As a final order, leave to appeal was not required, and the motion to quash was dismissed.

The applicant insurer, Liberty Mutual, brought an application for a declaration that coverage for its insured, Cronnox Inc., was excluded under a 'prior notice' exclusion in a professional liability policy.

Cronnox, an engineering company, was sued following an electrical explosion at a hotel where it provided design services.

Prior to the inception of the Liberty policy, Cronnox received correspondence from lawyers representing the hotel's property insurer and construction manager, advising of a potential claim and inviting Cronnox to notify its liability insurer.

The court found that the application was not premature and could be decided on the record.

Applying an objective test, the court concluded that a reasonable person in the insured's position could have reasonably expected that the acts alleged in the correspondence might give rise to a claim.

Therefore, the prior notice exclusion applied, and Liberty had no duty to defend or indemnify Cronnox.

The appellant brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order quashing his appeal to the Divisional Court from an order of the Law Society's Appeal Division.

The Appeal Division had quashed his appeal of a Hearing Division Tribunal order admitting findings of fact from a civil trial into his conduct proceeding.

The Divisional Court dismissed the motion, finding that the Appeal Division's order was not a final decision under s. 49.38 of the Law Society Act, as there had been no final determination of professional misconduct or conduct unbecoming.

The defendants sought costs of two motions on a partial indemnity scale against the plaintiff, and also sought costs personally against the plaintiff's former legal counsel under Rule 57.07(1) of the Rules of Civil Procedure.

The court awarded costs to the defendants against the plaintiff, finding the amounts claimed reasonable.

However, the court dismissed the claim for costs against the plaintiff's former lawyers, finding their conduct did not meet the high threshold for personal liability.

The defendants were ordered to pay $1,500 in costs to the plaintiff's former lawyers for successfully defending the claim against them.

At the opening of a scheduled 7-week trial, the defendant insurer brought a motion for an adjournment due to the plaintiff's late disclosure of physical evidence and additional documents.

The plaintiff had disclosed the existence of particles and other physical evidence relevant to the cause of the equipment failure just weeks before trial.

The court found that it would be unjust to force the defendant to proceed without an opportunity to obtain expert advice and conduct further discovery on the newly disclosed evidence.

The motion for an adjournment was granted.

The appellants, minority shareholders of an insolvent corporation, appealed a motion judge's order granting partial summary judgment dismissing their claims for damages for oppression, breach of contract, and tort.

The motion judge found no evidence that the respondents' alleged wrongful conduct caused the appellants' damages.

The Divisional Court upheld the dismissal of the damages claims, confirming that causation and compensable injury are required for an oppression claim under the Business Corporations Act.

The court made a minor amendment to the order to correct an accidental error regarding declaratory relief, but otherwise dismissed the appeal.

The plaintiff commenced a civil action against his estranged spouse and her family members, claiming damages for unjust enrichment, breach of contract, fraud, and conspiracy relating to the alleged concealment and sale of jointly owned marital assets.

The defendants moved to strike the statement of claim, arguing the claims were disguised attempts to seek an equalization payment and must be brought in Family Court.

The plaintiff brought a cross-motion to transfer the action to an existing Family Court proceeding.

The court agreed with the defendants, finding that the claims were predicated on an entitlement to an equalization payment under the Family Law Act and constituted an abuse of process in civil court.

The court struck the statement of claim and dismissed the plaintiff's motion to transfer, noting the plaintiff must seek leave to add parties in the Family Court proceeding.

Several trade unions and the Canadian Labour Congress brought motions for leave to intervene as added parties or as friends of the court in an action challenging the constitution of the Amalgamated Transit Union.

The moving parties argued they had an interest in the proceeding because their own constitutions contained similar provisions and they could be adversely affected by the precedent.

The court dismissed the motions, finding that an interest based solely on the potential precedential effect of a decision is insufficient for intervention as an added party under Rule 13.01.

The court also denied leave to intervene as friends of the court under Rule 13.02, concluding that the proposed interveners' submissions would largely duplicate the arguments of the defendant union and would not provide a materially different perspective.

The plaintiff brought an action regarding a failed real estate transaction against the sellers, the real estate agents, the brokerage, and the Real Estate Council of Ontario (RECO).

RECO moved to dismiss the action against it, arguing it owed no private law duty of care to the plaintiff.

The realtor defendants moved to strike several paragraphs of the Statement of Claim for improperly pleading legal argument.

The court granted both motions, dismissing the action against RECO and striking the argumentative paragraphs with leave to amend, awarding $11,000 in costs to the moving parties.

The plaintiffs brought a motion for summary judgment seeking damages for mental distress, alleging the defendant congregation breached a contract by failing to timely issue an Interment Rights Certificate.

The plaintiffs claimed this delay prevented them from obtaining an order to exhume their father's remains in Manitoba for re-burial in Ontario.

The court found that the certificate was not legally required to apply for the disinterment order under Manitoba's Public Health Act.

As the plaintiffs failed to prove the breach of contract caused the delay and resulting mental distress, the motion for summary judgment was dismissed.

The appellant, a plaintiff and defendant by counterclaim in a motor vehicle accident action, appealed a Master's order dismissing his motion to remove the plaintiffs' counsel of record due to an alleged conflict of interest.

The appellant argued that because he was counterclaimed against for contribution and indemnity regarding his co-plaintiff daughter's damages, their joint counsel was in a disqualifying conflict.

The Superior Court dismissed the appeal, finding no palpable and overriding error in the Master's conclusions that the risk of conflict was remote, that the clients had provided fully informed consent to waive any potential conflict, and that the risk of improper disclosure of confidential information was speculative.

The defendants moved under Rule 21.01(3)(a) to dismiss a libel action brought by a unionized teacher, arguing the claim fell within the exclusive arbitral jurisdiction created by the collective agreement and s. 48(1) of the Labour Relations Act, 1995.

Applying the Weber framework, the court held the essential character of the dispute was defamation arising from an email about an extracurricular, unpaid, voluntary school concert, not a dispute about discipline, workplace administration, or the interpretation or application of the collective agreement.

The court distinguished authorities where the impugned communications or conduct were tied to discipline, dismissal, workplace performance, or other employment-related action.

The jurisdiction motion was dismissed.

No costs were awarded to the self-represented responding party because there was no evidence that she had forgone income.

The plaintiff brought a motion for summary judgment for amounts owed pursuant to a written employment agreement, amending agreements, and a personal guarantee signed by the CEO.

The court found that the CEO was personally liable for unpaid salary and expenses under the personal guarantee, but not for termination pay or vacation pay.

The corporate defendant was found liable for all amounts.

Summary judgment was granted against the defendants jointly and severally for unpaid salary and expenses, and against the corporate defendant for the separation payment and vacation pay.

The third party brought a motion for summary judgment to dismiss the defendants' third party claim for contribution and indemnity as statute-barred under s. 18 of the Limitations Act, 2002.

In a previous motion in the same action, another third party successfully struck the defendants' third party claim on the basis that the two-year limitation period commenced upon service of the statement of claim, without regard to discoverability.

The court held that the defendants were precluded by the doctrine of issue estoppel from relitigating the limitation period issue.

The motion was granted and the third party claim was dismissed.

The third parties, EMK, brought a motion for summary judgment to dismiss the defendants' third party claim for contribution and indemnity arising from a fire at a poultry processing plant.

EMK also sought a declaration that Belgian law governed the contract for the sale of a boiler to the defendants.

The court applied the closest and most substantial connection test and determined that Belgian law governed the contract.

However, the court dismissed the motion for summary judgment, finding that a fair and just determination of whether EMK had knowledge of the alleged defects under the Uniform Law on the International Sale of Goods could not be made prior to the trial of the main action, as it risked inconsistent findings of fact.

The appellant appealed a Consent and Capacity Board decision finding him incapable of making treatment decisions regarding antipsychotic and ancillary side effect medications.

The appellant argued the Board erred in finding that the reasonably foreseeable consequences of the treatment were that his condition would improve, and erred in finding him incapable regarding ancillary medications without specific evidence.

The Superior Court of Justice dismissed the appeal, holding that the Board's findings were reasonable and supported by the psychiatric evidence.

The court also confirmed that under section 23 of the Health Care Consent Act, a finding of incapacity for a primary treatment extends to necessary and ancillary treatments, including side effect medications.

The plaintiff brought a motion for an assessment of legal fees and disbursements following a settlement of all other claims in an action for malicious prosecution and false arrest against the Toronto Police Services Board and numerous officers.

The settlement agreement provided that the plaintiff's costs were to be assessed by a judge.

The court determined that costs should be fixed on a partial indemnity scale rather than assessed on a solicitor-and-client basis.

Applying the principle of proportionality, the court significantly reduced the plaintiff's claimed costs of $266,509.90, finding the time spent on discoveries and other steps disproportionate to the $175,000 settlement value.

Costs were fixed at $74,392.67.

The plaintiff abandoned its motion for an interlocutory injunction after nearly two years.

The defendants sought costs of the abandoned motion on a substantial indemnity scale, payable forthwith.

The court held that, absent extraordinary circumstances, costs of an abandoned injunction motion are payable forthwith.

Finding no reprehensible conduct by the plaintiff, the court awarded costs on a partial indemnity scale, fixing them at $65,908.61 for the Racer Defendants and $22,713.82 for the Standard Defendants.

The plaintiff, a 50% shareholder in a condominium maintenance business, brought a motion for a Mareva injunction against her former business partner and his wife, alleging misappropriation of corporate funds to purchase a townhouse.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case that the defendants were dissipating or removing assets from the jurisdiction.

The court noted the defendant's offer to turn over all corporate assets to the plaintiff as compelling evidence against the risk of dissipation.