Philip Underwood

The plaintiffs sought leave to amend their statement of claim to significantly increase the damages claimed (from $60 million to $662 million) and to elaborate on the theoretical basis for these damages, including through the application of unjust enrichment.

This motion followed a prior summary judgment that established Ontario's liability for breach of contract, with damages to be assessed.

The defendant, Ontario, opposed the amendments, arguing they were barred by res judicata (issue and cause of action estoppel), abuse of process, and constituted a collateral attack, particularly concerning the unjust enrichment claim which was subject to a pending appeal.

The court granted leave for most amendments, finding no non-compensable prejudice.

It clarified that while the unjust enrichment claim as a cause of action was under appeal and could not be bolstered, the amendments could be used to plead theories of damages for the existing contract claim.

The plaintiffs brought a motion for the production of a Cooperation and Common Interest Agreement between the defendants.

The plaintiffs sought the agreement to support their argument that the defendants mounted a joint defence, which would affect the apportionment of costs following summary judgment motions.

After reviewing the agreement in camera, the court dismissed the motion, finding that the document was protected by privilege.

The defendant purchaser brought a motion to stay the plaintiff vendor's civil action in favour of arbitration, relying on the arbitration clause in the Tarion Addendum to their agreement of purchase and sale for a new home.

The plaintiff conceded the existence and scope of the arbitration agreement but argued the court should refuse the stay due to undue delay, waiver, and because the matter was proper for summary judgment.

The court found no waiver or undue delay, noting the action had not progressed significantly past pleadings.

The court also held the case was not proper for summary judgment as it involved disputed facts and issues of anticipatory breach.

The motion to stay the action was granted.

The plaintiffs, standardbred horse breeders, sued Ontario and the Ontario Lottery and Gaming Corporation (OLG) for breach of contract, negligence, and negligent misrepresentation following the cancellation of the Slots at Racetrack Program (SARP).

The defendants moved for summary judgment to dismiss the action, and the plaintiffs cross-moved for summary judgment on liability.

The court held that the Crown Liability and Proceedings Act (CLPA) retroactively extinguished the plaintiffs' tort claims because the cancellation of SARP was a policy decision made in good faith.

However, the court found that the 1998 Letter of Intent establishing SARP was a binding contract.

Applying the principled exception to the doctrine of privity, the court held that the plaintiffs had standing to enforce the contract.

The court granted summary judgment to the plaintiffs against Ontario for breach of contract, finding that Ontario breached an implied term to provide reasonable notice of termination.

The action against OLG was dismissed.

This addendum to a prior summary judgment resolves a dispute over the precise amount outstanding under a settlement agreement, which was a condition for granting relief from forfeiture to the defendants.

The court determined the defendants were liable for $12,000 in default administration fees for a specific period (July, August, September 2018) and $108,624.53 in legal fees incurred before November 2018, totaling $120,624.53.

The court rejected the plaintiff's claim for interest on default administration fees and for default administration fees accruing after October 2018 due to the plaintiff's own intransigence in providing an accounting.

A deadline of 30 days was set for payment, failing which the relief from forfeiture would be null and void.

The plaintiffs, a group of mortgage lenders, brought a motion for summary judgment seeking full arrears at a 25% annual interest rate and default administration fees after the defendants breached a settlement agreement.

The settlement had reduced the interest rate, but the defendants' opposition to a property sale approval motion triggered a clause voiding the release.

The defendants sought relief from forfeiture or argued the rates violated the federal Interest Act.

The court granted relief from forfeiture, finding the breach caused minimal prejudice to the lenders compared to the substantial forfeiture sought, and ordered an accounting of any remaining settlement amounts.

The court also found the 25% interest rate and default fees were not unenforceable under the Interest Act due to prior Supreme Court and Court of Appeal rulings on time-triggered rate increases and consensual resolutions.

The respondent credit union brought a motion to quash an appeal filed by debtors from a receivership order.

The order appointed a receiver over two residential properties pursuant to the Bankruptcy and Insolvency Act and the Courts of Justice Act.

The appellants sought to appeal without leave.

The court held that no appeal as of right existed and declined to grant leave to appeal, finding that the appeal did not raise an issue of general importance, was not prima facie meritorious, and would unduly hinder the receivership proceedings.

The motion was granted and the appeal quashed with costs fixed at $20,000.

An online retailer of prescription eyewear based in British Columbia appealed an application judge's decision that found it was in breach of Ontario's Regulated Health Professions Act by dispensing prescription eyewear to Ontario customers without involving Ontario-licensed health care providers.

The Court of Appeal allowed the appeal, finding that the application judge erred in determining that sufficient constitutional connection existed between the respondent's online sales and Ontario's regulatory scheme.

The court held that while delivery of prescription eyewear falls within the continuum of dispensing activities, the mere delivery of product ordered online and processed in compliance with British Columbia's regulatory regime does not establish sufficient connection to apply Ontario's controlled act provisions to an out-of-province supplier.

The court emphasized that the discrete act of delivery has primarily a commercial aspect rather than a health care one, and that applying Ontario's legislation would effectively grant a monopoly over the importation of prescription eyewear into Ontario.

The appellant appealed a motions judge's finding that the parties had reached a binding settlement agreement.

The appellant argued there was no consensus on the specific terms of a release.

The Divisional Court dismissed the appeal, holding that the record established agreement on the essential terms, including the payment amount, confidentiality, and a without-costs dismissal.

The court found no error in the conclusion that the specific language of the release was not an essential term of the settlement.