Peter J. Henein

The defendants moved to strike the plaintiff's claim for abuse of process, arguing that the prior decision in Leavens v. Schwartz (the "Shotgun Decision") had finally disposed of the matter.

The plaintiff sought to challenge a buy/sell transaction that had been enforced by the court, alleging that the defendants had engaged in a secret investment arrangement with third-party financiers without disclosure.

The court found that the claim constituted an abuse of process because the underlying subject matter was identical to the prior proceeding, the issues could have been raised before the prior judge, and the plaintiff was essentially seeking to undo a final court decision with which he was dissatisfied.

The court struck the claim without leave to amend.

The court granted summary judgment in favour of Aaron Bell, ordering specific performance of an agreement of purchase and sale (APS) for a unique mixed-use property.

The court found that Donald Bisaillon, the seller, had waived the solicitor review condition in the APS or, alternatively, could not rely on it in bad faith to avoid the sale.

The court held that specific performance was the appropriate remedy due to the property's unique qualities and the inadequacy of damages.

The court considered costs following the resolution of four building permit appeals brought by Rothmar Holdings Inc. against the City of Cornwall.

After the City issued permits for all properties before the hearing, the parties argued only costs.

Rothmar sought substantial indemnity costs, alleging bad faith by the City, while the City sought partial indemnity costs or no costs.

The court declined to award costs to either party, finding it inappropriate to investigate the merits, apply costs factors, or determine relative success in the absence of findings on the substantive issues.

The court also declined to award costs of a preliminary evidentiary motion.

The applicant brought a preliminary evidentiary motion to strike or exclude the expert opinion evidence of the respondents' expert, arguing the expert lacked independence and impartiality.

The applicant alleged the expert's firm had a reputational stake and a direct client relationship with the respondent municipality, and employed a former municipal building inspector whose work was reviewed in the expert's report.

The court applied the White Burgess framework and found the threshold requirement for independence and impartiality was met, as the relationship was analogous to a mere employment relationship and did not establish a realistic concern that the expert was unable or unwilling to fulfill his duty to the court.

The motion was dismissed.

The applicants, current trustees of a trust, brought an urgent application concerning a real estate transaction closing that day, seeking relief related to the respondent's alleged former trustee status and his entitlement to ensure proper application of trust funds.

The respondent brought a counter-application.

The court denied the urgent relief sought by the applicants, finding their urgency self-induced and their approach tactical.

The judge emphasized that the complex issues deserved a fair airing on proper notice and that the applicants had the ability to resolve the matter to preserve the sale.

The court also acknowledged the respondent's legitimate concerns about potential personal liability as a former trustee and his right to due diligence.

The appellant brought four related actions against various respondents arising from dealings that occurred primarily in the United States between 2001 and 2016.

The respondents moved to dismiss or stay the actions on the ground that Ontario courts lacked jurisdiction due to the absence of a real and substantial connection to the province.

The motion judges granted the motions and dismissed all actions.

On appeal, the Court of Appeal considered whether Ontario jurisdiction existed based on: (1) consulting contracts allegedly entered into at Toronto airport; (2) products being advertised, marketed, and distributed in Ontario; and (3) respondents carrying on business in Ontario.

The Court of Appeal upheld the dismissals, finding no real and substantial connection to Ontario and affirming that mere advertising or distribution through third-party retailers does not constitute carrying on business in the jurisdiction.

This endorsement addresses the costs of a motion where default judgment obtained by the plaintiff, Western Steel and Tube Ltd., against the defendants, including Canadian Tire Corporation, Limited, was set aside.

The court found the plaintiff primarily responsible for the need for Canadian Tire's motion due to procedural misconduct, including failure to provide notice of the default trial and to make full disclosure of material facts.

Despite the plaintiff's arguments regarding the default of Jiangsu Sainty Sumex Tools Corp. Ltd., the court ordered the plaintiff to pay Canadian Tire $75,000 in all-inclusive costs, emphasizing the plaintiff's inappropriate conduct and refusal to accept reasonable settlement offers.

No costs were awarded for or against Jiangsu Sainty Sumex Tools Corp. Ltd.

The defendants, Jiangsu Sainty Sumex Tools Corp. Ltd. and Canadian Tire Corporation, Limited, moved to set aside a default judgment granted against Jiangsu Sainty Sumex and its prior noting in default.

Canadian Tire also sought to set aside or vary the judgment, particularly its in rem declarations concerning intellectual property rights, arguing they were non-binding on Canadian Tire.

The default judgment was obtained by the plaintiff without notice to counsel for either defendant and without full disclosure of material facts to the court, including a Trademark Opposition Board decision against the plaintiff's claimed trademark, an expired patent, and ongoing discussions with the defaulting defendant's counsel.

The court found the plaintiff's conduct inappropriate and set aside the default judgment due to lack of notice and non-disclosure.

The noting in default for Jiangsu Sainty Sumex was also set aside, conditional on the defendant posting security for damages and costs, providing an affidavit of documents, and producing a witness for discovery, to ensure the matter proceeds to a full trial on the merits.

The defendants brought a motion to dismiss the action for want of jurisdiction, citing enforceable forum selection clauses, a lack of real and substantial connection between the litigation and Ontario, and abuse of process due to prior arbitration and litigation in California concerning the same subject matter.

The plaintiffs, largely self-represented, opposed the motion.

The court found that the forum selection clauses were valid and enforceable, Ontario lacked jurisdiction simpliciter as no presumptive connecting factors were established, and allowing the action to proceed would constitute an abuse of process given the prior resolutions in California.

The action was dismissed, and a sealing order was granted to protect confidential commercial information.

This decision addresses five separate motions brought by the plaintiffs to reinstate administratively dismissed actions or extend time for filing/serving Statements of Claim, after 14 years of litigation with minimal progress.

The court dismissed all motions, finding that the plaintiffs had abused the process by repeatedly attempting to re-litigate issues already decided, misusing court procedures for investigative purposes rather than advancing claims, consistently ignoring court orders and timetables, and failing to properly manage their claims and expert evidence.

The court relied on its inherent jurisdiction to manage its process, concluding that the delay was inordinate and inexplicable, and that "enough is enough."

The defendants moved under s. 106 of the Courts of Justice Act to stay the copyright portion of an action until the foreign copyright owners were added as parties or consented to be bound by the court’s decision.

The motion turned on whether, under s. 41.23(2)(c) of the Copyright Act, the interests of justice required the copyright owners to be parties where the plaintiffs were licensees and contractual representatives of those owners.

The court held that the plaintiffs had authority, and in one case a contractual obligation, to enforce the copyright owners’ rights and that the owners were aware of the litigation but chose not to participate.

The court also noted the defendants’ significant delay in bringing the motion and the advanced stage of the proceedings.

It concluded that the interests of justice did not require the copyright owners to be added as parties and dismissed the motion.