Peter D. Lauwers

A homebuilder sued a purchaser for breach of an agreement of purchase and sale after the transaction failed to close.

The purchaser had moved into the property under an interim occupancy agreement while the vendor sought a minor zoning variance required due to a setback issue.

The purchaser attempted to reinstate a “time of the essence” clause and set a final closing date, then treated the agreement as terminated when the vendor did not close on that date.

The court held that the purchaser’s notice was ineffective because it imposed new conditions, set an unreasonable closing date, and was motivated by bad faith.

The purchaser repudiated the contract, entitling the vendor to retain the deposits as liquidated damages and recover certain additional amounts under collateral and occupancy agreements.

The Township of Tiny appealed a decision of the Deputy Director of Titles under the Boundaries Act, which confirmed the westerly boundary of a beachfront cottage lot to be the water's edge of Lake Huron.

The Divisional Court found the Deputy Director's decision unreasonable, as it ignored the commercial reality of the original subdivision plan, which intended to reserve the beach for the use of back lot owners and the public.

The appeal was allowed, and the boundaries were confirmed as depicted on the original Plan of Subdivision, which set the boundary at a monumented straight line inland from the water's edge.

A self-represented plaintiff brought motions to amend her statement of claim, strike a third party claim, and seek personal costs against opposing counsel.

The court allowed the amendments to the statement of claim with modifications, striking portions characterized as scandalous and vexatious and preserving causes of action in nuisance and negligence.

The motion to strike the third party claim against contractors and a municipality was dismissed because consent to its issuance had previously been provided and the presence of the additional parties was necessary for a just determination of the dispute.

Allegations seeking personal costs against defence counsel were unsupported and resulted in a substantial indemnity costs award against the plaintiff.

The defendant also received partial indemnity costs for the motion.

The representative plaintiff brought a motion for approval of a settlement agreement in a class action arising from the loss of an unencrypted USB key containing the personal information of over 83,000 individuals who received H1N1 vaccines.

The proposed settlement established a claims process for class members who suffered economic harm, with a claim period ending in August 2016, but provided no direct cash payments for anxiety or distress.

Despite objections from some class members regarding the lack of immediate compensation and the length of the claims period, the court approved the settlement as fair and reasonable.

The court noted that the risk of identity theft had largely dissipated over time, making the prospects of success at trial poor, and also approved class counsel fees of $500,000 plus a percentage of future claims.

The plaintiffs' home and personal property were damaged by a fire.

They sued their insurer and the restoration contractor for incomplete and deficient repairs, unpaid additional living expenses, and damaged or destroyed personal property.

The insurer alleged the plaintiffs committed fraud in their proofs of loss.

The court found no fraud, holding that the insurer breached its duty of good faith by raising the fraud allegation as a high-handed litigation strategy.

The court awarded the plaintiffs damages for the deficient home repairs, additional living expenses, and lost personal property, along with $100,000 in punitive damages against the insurer.

The applicant sought to exclude a loaded handgun seized during the execution of a search warrant at his residence, alleging multiple Charter breaches under sections 8 and 10(b).

The court found that while the police breached the applicant's right to counsel by delaying access for 4.5 hours, and overstepped the warrant by seizing excluded items and searching a cell phone without a warrant, the telewarrant itself was validly issued and executed.

Applying the Grant framework, the court concluded that the breaches were at the less serious end of the continuum, did not produce the firearm, and that society's interest in adjudicating serious gun charges on their merits outweighed the impact of the breaches.

The application to exclude the evidence was dismissed.

Sentencing followed a guilty plea to careless storage of a firearm after more serious possession charges were not pursued.

The court reviewed denunciation, deterrence, rehabilitation, proportionality, and parity principles under the Criminal Code, with detailed analysis of custodial and conditional sentence authorities.

While recognizing the seriousness of loaded firearms offences, the court distinguished authorities involving more serious companion offences and found the offender's first-offender status, guilty plea, compliance on bail, and community safety assessment supported a community-based disposition.

A conditional sentence was imposed with strict curfew, community service, abstinence, weapons restrictions, and ancillary prohibition and forfeiture orders.

During a trial regarding a schoolyard assault that allegedly caused the rupture of an arteriovenous malformation (AVM) in the plaintiff's brain, the plaintiffs moved to exclude an addendum to the defendants' neurosurgical expert report.

The plaintiffs argued the addendum, which contained statistics on the annual risk of an AVM bleeding, constituted a new 'crumbling skull' defence related to damages that was not properly pleaded or disclosed.

The court dismissed the motion, finding that the risk statistic was already patent in the expert's original report and had been accepted by the plaintiffs' own expert.

The court held that a medical fact relevant to causation for liability is equally relevant to the assessment of damages, and its use did not open a new medical field.

The parties sought a determination of custody, access, and child support for their 6-year-old child.

The applicant mother sought to maintain the status quo access schedule, while the respondent father sought a week-about shared parenting arrangement.

The court ordered joint custody with primary residence to the mother, but increased the father's access time, finding that the father's poor conflict management skills and impulsive behaviour made an immediate week-about arrangement inappropriate.

For child support, the court imputed the self-employed father's income at $100,000, ordered $7,140 in arrears, and set ongoing support at $775 per month, reflecting that the new access schedule crossed the 40 percent shared parenting threshold.

Following an earlier finding of civil contempt for breaching a court order requiring delivery of confidential documents to a supervising solicitor, the court addressed penalty and costs.

The contemnor had deliberately retained and disseminated documents despite a clear order, interfering with the administration of justice.

The court considered the principles governing civil contempt sanctions under Rule 60.11 of the Rules of Civil Procedure, emphasizing deterrence and denunciation while noting that incarceration is typically a last resort.

Although the conduct was wilful and reckless, it did not involve repeated defiance warranting imprisonment.

The court imposed a $5,000 fine payable within 60 days, failing which a 10‑day custodial sentence would apply, and ordered full indemnity costs of $58,000.

In a contempt proceeding arising within complex commercial litigation involving egg producers, the court addressed scheduling and procedural directions for the penalty and costs phase following a prior finding of contempt.

The responding party sought to finalize penalty before an upcoming appeal to avoid fragmented appellate proceedings.

The court considered appellate guidance discouraging fragmented appeals where the contempt disposition had not yet been completed.

The court scheduled the penalty hearing and established timelines for service of supplementary materials and potential intervention motions under the Rules of Civil Procedure.

Directions were also provided regarding the possibility of viva voce evidence at the penalty hearing.

The Ontario Harness Horse Association sought judicial review of a decision by the Ontario Racing Commission to redistribute purse monies among racetracks.

The Commission had adopted a Framework to move purse funds from racetracks with profitable slot machine operations to those with more active wagering to re-invigorate horse racing.

The applicant argued the Commission lacked jurisdiction, claiming it conflicted with federal pari-mutuel regulations and interfered with existing contractual rights.

The Divisional Court dismissed the application, finding the Commission had broad regulatory authority under the Racing Commission Act, 2000, that its actions did not conflict with federal regulations, and that its regulatory powers permitted incidental interference with existing contracts.

In an ongoing estate litigation spanning over 20 years, the trustees of the defendant estate became deadlocked.

One trustee refused to approve a settlement or the payment of professional fees, asserting his own interests as a beneficiary and threatening litigation against his co-trustees.

The co-trustees moved to remove him as a trustee and for court approval of estate expenses paid from property sale proceeds.

The court granted the motion to remove the dissenting trustee, finding he was no longer acting in the interests of the estate.

The court also exercised its inherent jurisdiction to break the deadlock and approve the payment of reasonable estate expenses, without prejudice to the removed trustee's right to challenge the payments at a future passing of accounts.

Following dismissal of a motion for an interlocutory injunction relating to alleged breaches of non‑competition and confidentiality obligations, the court determined costs.

The defendants sought substantial partial indemnity costs exceeding $93,000, while the plaintiff argued the amount was excessive and that costs should be in the cause.

The court reviewed principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing reasonableness, proportionality, and the reasonable expectations of the paying party.

While finding the defendants substantially successful, the court held the claimed hours and staffing levels excessive and reduced the award.

Partial indemnity costs were fixed at $40,000 plus HST and disbursements, payable forthwith.

The Litigation Administrator in a class action sought court approval for its accounts totaling $65,455.25.

The defendants objected, arguing the fees significantly exceeded the initial estimate of $21,500.00.

The court applied the principles for passing a receiver's accounts and found the work was necessary, well done, and the hourly rates were known in advance.

The court approved the accounts up to the end of December 2011, noting that changes in the notice process increased the complexity and expense of the administrator's work.

The applicant applied for a stay of proceedings under section 24 of the Charter, arguing his right to be tried within a reasonable time under section 11(b) was infringed.

The total delay from the charge to the anticipated trial date was approximately 28 months.

The court analyzed the delay using the Morin framework, attributing portions to inherent time, Crown delay, and institutional delay.

The court found the total attributable delay was modestly above the guidelines for a two-stage process.

However, balancing the delay against the lack of significant prejudice to the applicant and the seriousness of the firearms charges, the court dismissed the application.

In a medical malpractice and conspiracy action, a defendant physician moved for summary judgment and to strike claims under Rules 20, 21.01(3)(d), and 25.11.

The court held that the conspiracy allegations required the forensic machinery of a trial and declined to apply the best-foot-forward principle on this record.

On the malpractice claim, the court found the existing anesthesiologist report insufficient on the general practitioner standard of care but concluded a treating physician was not categorically disqualified from providing qualifying opinion evidence.

The motion was made conditional on service of a compliant report within 30 days, failing which the action against the moving physician would be dismissed with costs.

The applicants sought an interlocutory injunction reinstating two students expelled from a private school for possessing and consuming marijuana on campus.

The expulsions were imposed pursuant to the school’s zero‑tolerance drug policy contained in contractual enrollment documents.

The applicants argued that the court had jurisdiction under the Judicial Review Procedure Act or, alternatively, through contract law, and that procedural fairness required notice and a hearing before expulsion.

The court held that the decision of a private school to expel students was not the exercise of a statutory power of decision and therefore was not subject to judicial review under the JRPA.

Applying the RJR‑MacDonald test, the court found no serious issue to be tried because the contractual documents clearly incorporated the zero‑tolerance policy and the misconduct was admitted.

The motion for interlocutory reinstatement was dismissed.

The plaintiff former employer moved for an interlocutory injunction to enforce non-competition and confidentiality clauses against a former employee who invented a specialized technology.

The court applied the heightened 'strong prima facie case' standard for restrictive covenants in employment contracts.

While the court found a strong prima facie case that the employee breached non-competition provisions, it dismissed the injunction because the plaintiff failed to demonstrate irreparable harm, as damages could be quantified.

However, the court granted a preservation order regarding the disputed technology and related electronic records.

Following an unsuccessful motion by the third party, the defendants sought substantial indemnity costs, arguing the motion was hopeless.

The court rejected the claim for substantial indemnity costs, finding the third party was entitled to pursue the motion.

Applying principles of reasonableness and proportionality, the court awarded the defendants partial indemnity costs fixed at $13,000 plus HST and disbursements.