Peter J. Henein

On a motion for leave to intervene in a pending constitutional challenge to the mental-illness exclusion from medical assistance in dying, the court granted leave to four public-interest interveners to participate in an urgent July motion seeking individual constitutional relief under s. 24(1) of the Charter.

Applying Rule 13.02 and the generous constitutional intervention framework, the court found each proposed intervener had a sufficient interest, distinct perspective, or recognized expertise capable of assisting the court.

The court held it was premature to determine intervention in the underlying application because the evidentiary record was incomplete and additional intervener requests might follow.

Strict limits were imposed: no new evidence, no new issues, no submissions on the individual applicant’s personal circumstances, and no costs.

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 applicant, a registered clinical psychologist, sought judicial review of a decision by the College of Psychologists of Ontario's Inquiries, Complaints and Reports Committee (ICRC) ordering him to complete a specified continuing education or remedial program (SCERP) regarding professionalism in public statements.

The ICRC's order followed an investigation into the applicant's social media posts and public statements, which the committee found posed moderate risks of harm to the public and the profession.

The Divisional Court dismissed the application, finding that the ICRC reasonably balanced the applicant's Charter right to freedom of expression with the College's statutory mandate to regulate the profession in the public interest, in accordance with the Doré framework.

The Court also held that the ICRC's decision met the Vavilov standard of justification, transparency, and intelligibility.

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 moving party, Charles Shaker, brought a motion to discharge an interim charge against a property obtained by the CRA to secure his personal tax debt.

Shaker argued that he held the property solely as a trustee and a trustee's interest in trust property cannot be charged for a personal debt.

The Federal Court agreed, finding that a trustee's legal interest is not an "interest in real property" within the meaning of Rule 458(1)(a)(i) available to satisfy personal debts.

The Court also refused the CRA's request to have the net proceeds of the property's pending sale paid into court to allow cross-examination, as the CRA had obtained the ex parte order solely on the basis of Shaker's role as trustee.

The motion was granted and the interim charge discharged.

The applicant broadcaster brought an application for copyright infringement against a political party for using short clips of its news broadcasts and leadership debates in political attack ads and social media posts.

The Court found that the taking constituted a substantial part of the works, but that the use was protected under the fair dealing exception for the purpose of criticism.

The application for declaratory relief was dismissed with costs.

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.

The applicants sought an order under s. 140 of the Courts of Justice Act declaring the respondents vexatious litigants.

The individual respondent had commenced multiple actions in Ontario regarding matters already settled in California, all of which were dismissed for lack of jurisdiction or abuse of process.

He also engaged in harassing and abusive communications with opposing counsel.

The court found the respondent's conduct met the criteria for a vexatious litigant and ordered that he and his corporations require leave to commence any new proceedings in Ontario.

Requests to stay existing appeals and seal the court file were dismissed.

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 moving defendants sought leave to issue a third party claim for contribution and indemnity against a proposed third party said to have manufactured a component of the crane brake system involved in a motor vehicle accident, or alternatively to consolidate the action with a related contribution and indemnity action.

The court held that, notwithstanding Rule 29.02(1.2), it had no authority to permit commencement of a statute-barred third party claim, and found the claim was discoverable no later than February 23, 2012 and was not advanced within the two-year limitation period under the Limitations Act, 2002.

The court further held that no useful purpose would be served by consolidation because the related actions had already been ordered to be tried together and consolidation would likely add costs through consolidated pleadings.

The motion was dismissed, with costs to the proposed third party.

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.

The plaintiff brought a motion under Rule 60.12 of the Rules of Civil Procedure seeking to strike the defendants’ statement of defence for failure to comply with a consent order requiring production of extensive documents and answers to refusals arising from discovery.

Evidence showed the defendants produced only eight irrelevant invoices and had not conducted a search to comply with the order.

On cross‑examination the individual defendant admitted the searches referenced in his affidavit were conducted earlier and not for the purpose of complying with the consent order, and that potentially relevant documents may exist with the company’s accountant and bookkeeper.

The court found the defendants had effectively done nothing to comply and criticized the affidavit evidence as clearly erroneous under oath.

However, the court declined to immediately strike the defence and instead granted a final opportunity to comply within 30 days, coupled with substantial indemnity costs and a security for costs requirement.

The defendant, Impark, brought a motion to enforce an interim settlement agreement regarding the remittance of parking lot revenues by the plaintiff, Precise.

The dispute centered on whether the settlement agreement's fee deduction arrangement applied retroactively to the months of September and October 2012.

The court applied principles of contractual interpretation, considering the factual matrix and the specific language used in the agreement.

The court concluded that the future-looking language and the reference to Precise altering its 'current practice' indicated the parties intended the arrangement to apply prospectively from November onwards.

The motion was dismissed.

In a Commercial List dispute involving the valuation of shares in a pharmacy business and claims regarding termination pay, the parties brought a refusals and production motion relating to documentary disclosure.

During the hearing, the court concluded that the issues required more extensive argument than appropriate for a brief Commercial List refusals motion.

The judge provided guidance regarding production obligations concerning alleged diversion of business and the use of company funds benefiting related entities.

However, the court determined that detailed refusals disputes should be heard by a Master, whose jurisdiction includes such matters.

The motion was therefore referred to a Master for determination, with further case management to follow once the production issues are resolved.